Mr A M C Correa and Ms E Suurkivi v Assist Security (Retail) Ltd: 2301772/2022 and 2301832/2022
EMPLOYMENT TRIBUNALS
Case No 2301772/2022, 2301832/2022
Between
Mr A M C Correa and Ms E SuurkiviClaimantAssist Security (Retail) LtdRespondent
Before
Employment Judge CawthrayMr. Sonaike (instructed by Counsel) for claimantMr. Selwood (instructed by Counsel) for respondentDate 20 January 2025
JUDGMENT
[1]The Claimants’ complaints of unfair dismissal are well-founded. The Claimants were unfairly dismissed.[2]There is a 100% chance that the Claimants would have been fairly dismissed in any event.[3]The Claimants caused or contributed to the dismissal by blameworthy conduct, and it is just and equitable to reduce the compensatory award payable to the Claimants by 100%.[4]It is just and equitable to reduce the basic award payable to the claimant by 100% because of the Claimants’ conduct before the dismissal.[5]The Claimants’ complaints of wrongful/dismissal breach of contract in relation to notice pay are not well-founded and are dismissed.[6]The Claimants’ complaints of direct race discrimination are not wellfounded and are dismissed.[7]The First Claimant’s complaint of harassment related to race is not wellfounded and is dismissed.[8]The Claimants’ complaints of unauthorised deductions from wages are not well-founded and are dismissed.[9]The Claimants are not entitled to any award in relation to written statements of employment particulars.
REASONS
[1]This hearing involved claims brought by Mr. Antonio Correa and Ms. Evelin Suurkivi. The Claimants are married.[2]Mr. Correa has been referred to as the First Claimant and Ms. Suurkivi as the Second Claimant in previous Tribunal documents, and for consistency we adopt the same referencing.[3]Mr. Correa submitted two claims, the first on 23 May 2022 (2301773/2022) and the second on 26 May 2022 (2301832/2022). The ACAS Early Conciliation certificate shows that early conciliation took place between 13 March and 24 April 2022.[4]Ms. Suurkivi also submitted two claims, the first on 23 May 2022 (claim number 2301772/2022) and the second on 26 May 2022 (2301833/2022). The ACAS Early Conciliation certificate shows that early conciliation took place between 13 March and 22 April 2022.[5]The Claimants did not identify any legal representatives within their claim forms.[6]A case management preliminary hearing was conducted by Employment Judge Self on 16 May 2023. The Claimants represented themselves at that hearing. At that hearing a discussion about the basis of the claim and the allegations and issues took place. The Case Management Order records the issues for determination at the final hearing.[7]At the Case Management Preliminary hearing the Claimants applied for Mr. Troy Hewitt to be added as a respondent to the claim. The application was refused and the Case Management Order records that reasons were given orally at the hearing.[8]Both parties were represented at the final hearing. At the start of the final hearing the Employment Judge discussed the issues with the legal representatives. Mr. Sonaike, Counsel for the Claimants, said that Ms. Suurkivi, the Second Claimant, was withdrawing her complaint of direct race discrimination based on her own race (she is Estonian) and was now only seeking to pursue an associative direct race discrimination complaint based on her husbands’ race. On day 6 of the final hearing Mr. Sonaike said that the Claimants were withdrawing the first three allegations of unlawful deductions from wages. Within the Claimants’ written closing submissions, the direct discrimination allegations 11c and 11 d were withdrawn.[9]The issues for determination, noting the withdrawn complaints, are set out below using the numbering in the list of issues appended to the Case Management Order for ease of reference.[10]At the Case Management Preliminary Hearing it was agreed that claims 2301773/2022 and 2301833/2022 were duplicate claims and were dismissed. On preparing this judgment it is noted that Mr. Correa’s first claim – 2301773/2022 - (23 May 2022) was dismissed but Ms. Suurkivi’s second claim - 2301833/2022 - (26 May 2022) was dismissed.[11]This final hearing had been listed for seven days to consider liability only. Unfortunately, due to judicial availability it was not possible to sit on Thursday 5 September 2024. The hearing, with the parties, lasted six days. Due to the volume of witness evidence it was not possible to hear oral submissions at the end of the evidence, as the evidence was only completed on day six.[12]The final hearing took place by video.[13]Both parties submitted written closing submissions by 23 September 2024. The Claimants’ submissions ran to 42 pages and the Respondent’s submissions were 29 pages. The written submissions were considered in full.[14]The Tribunal met on 18, 19 and 20 November 2024 to deliberate and make a decision. Due to the level of information and number of allegations it was not possible to write up this Judgment and Reasons within the Tribunal deliberation days, and this Judgment and Reasons has been written as soon as possible after the deliberation days.[15]The Tribunal was provided with a Bundle of 1479 pages. It was explained to the parties at the outset that the Tribunal needed to be directed to any documents that it was required to read. The Tribunal was provided with a file of audio recordings, but the Bundle contained transcripts of the recordings. The Tribunal did not listen to any of the recordings.[16]All the witnesses provided a written witness statement, which were read by the Tribunal and all witnesses affirmed or gave a religious oath and gave oral evidence. A short summary of the witnesses is set out below.[17]For the Claimants, the following persons gave evidence: Mr. Correa, the First Claimant, – witness statement of 24 pages. The witness statement contained a significant amount of information about background matters. Further, there were some allegations in the list of issues that were not addressed in Mr. Correa’s witness statement. Ms. Suurkivi, Second Claimant, - witness statement of 28 pages. Similar to Mr. Correa, the witness statement contained a significant amount of information about background matters. Further, there were some allegations in the list of issues that were not addressed in Ms. Suurkivi’s witness statement. Mr. Volodymyr Zayik – witness statement of 13 pages. Mr. Zayik was a former employee of the Respondent. The Findings of Fact below set out more information about the relationship between Mr. Zayik, the Respondent and the Claimants. During the hearing Mr. Zayik’s behaviour was very difficult. He was rude and disrespectful to both the Respondent’s representative and the Tribunal, and appeared to have little respect for the fact that he was giving evidence in a final hearing in the Employment Tribunal. His evidence was inconsistent and changeable. The Tribunal did not consider him to be a reliable witness. Ms. Lisa Soder - witness statement of 5 pages. Ms. Soder was a former employee within the Respondent group. The Findings of Fact below set out more information about the relationship between Ms. Soder, the Respondent and the Claimants. Mr. Rob Soder - witness statement of 4 pages. Mr. Soder was a former employee within the Respondent. The Findings of Fact below set out more information about the relationship between Mr. Soder, the Respondent and the Claimants.[18]For the Respondents, the following gave evidence: Mr. Colin Howell – witness statement of 27 pages. Mr. Howell is presently the Chief Financial Officer of Assist Security Group, but at the time the claims were about he was the Chief Executive Officer. Mr. Howell is also a qualified accountant. Mr. Troy Hewitt – witness statement of 5 pages. Mr. Hewitt was not employed by the Respondent, or within its group, at the time that the claims were about. He is a friend of Mr. Howell and had various business interests with Mr. Howell. Mr. Hewitt joined Assist Security Group as a Chief Executive Officer, in April 2022, and is also a shareholder and director. Ms. Alison Isom-Leonard – witness statement of 5 pages. Ms. IsomLeonard was employed by Assist Services Group as Group Compliance Director between May 2021 and November 2022. Dr. Michael McDonagh - witness statement of 9 pages. Dr. McDonagh was a Non-Executive Chairman of Assist Security Group between July 2021 and September 2023.[19]Prior to the final hearing starting, on 1 July 2024 the Respondent had made an application for the claim to be stayed and the final hearing to be postponed. There had been no judicial decision on this application, which the Claimants’ had objected to. On the morning of Day 1 Mr. Sellwood, on behalf of the Respondent, confirmed that the application for a stay was no longer being pursued and the Respondent was happy to continue with the final hearing.[20]Day 1 was spent by the Tribunal reading, and on reviewing the papers it was evident that parties were involved in legal processes and disputes outside of the Employment Tribunal, namely High Court proceedings and a possible ongoing police investigation. The Employment Judge discussed the situation with the parties’ representatives, namely whether proceedings could continue and whether that it was sensible to give a selfincrimination warning, and they both agreed. Employment Judge Cawthray gave the self-incrimination warning at the start of Day 2.
Issues
[21]As noted above, the list of issues as appended to the Case Management Order dated 8 June 2023 is set out below. For ease of reference the original number has been adopted. Within the list it is noted where an allegation has since been withdrawn by the Claimants. Jurisdiction 1. Do the acts alleged fall within the limitation date set out by the Employment Rights Act 1996 (“ERA”) or the Equality Act 2010 (“EqA”) respectively, as varied by the ACAS Early Conciliation process? 2. If not, do those acts which are out of time constitute conduct extending over a period, the end of which period falls within time? 3. If neither 1 or 2 apply, and in respect of those causes of action governed by the ERA, was it reasonably practicable for the relevant Claimant to bring such a claim in time and, if so, was it brought within such time period as the Tribunal considers reasonable? 4. If neither 1 or 2 apply, and in respect of those causes of action governed by the EqA, does the Tribunal consider it just and equitable to extend limitation in respect of any of the alleged acts? Ordinary Unfair Dismissal (1st and 2nd Claimants) 5. In respect of each Claimant, did the Respondent dismiss that Claimant for a potentially fair reason or principal reason? The Respondent says that the reason was conduct. 6. If so, did the Respondent act reasonably in all the circumstances as treating that as a sufficient reason to dismiss each Claimant? 7. If so, did the dismissal fall within the range of reasonable responses open to the Respondent? 8. If not, was there a chance that the Claimants would have been dismissed fairly in any event and, if so, what was that chance? 9. In any event, did the Claimants contribute to their dismissal and to what extent? Wrongful Dismissal (1st and 2nd Claimants) 10. In respect of each Claimant, did the dismissal constitute a repudiatory breach of contract? Direct Discrimination (1st Claimant) Correa 11. Did the following acts occur?(a) In July or August 2021, during a software presentation on Zoom by a third party, Ms Ally Isom- Leonard repeatedly shutting down the First Claimant whenever he asked a reasonable question of the presenter – for example, cutting him off by saying “that is not important, let’s move on”. [Paragraph 9] (Comparator: Lisa Delahunty or hypothetical)(b) In July 2021, after a meeting at which the First Claimant’s proposal for a new company system was approved, Ms Isom-Leonard following the First Claimant out of the meeting and telling him in a loud, hostile and discussing it with her first [Paragraph 11] (Comparator: hypothetical)(c) From the beginning of her employment in 2021, Ms Isom-Leonard not inviting the Claimants to senior management meetings [Paragraph 14] (Comparator: Andy Howe, Malcolm Nicol, Gary McConnell, Lisa Delahunty, Matt Crowfoot or hypothetical) This issue was withdrawn by the Claimants within Mr. Sonaike’s written closing submissions.(d) On 7 September 2021, the Claimant’s proposal to transfer an unhappy client from Assist Security Ltd to the Respondent being frustrated by Mr Hewitt requiring certain covenants to be imposed [Paragraph 18] (Comparator: Andy Howe or hypothetical) This issue was withdrawn by the Claimants within Mr. Sonaike’s written closing submissions.(e) Between October and November 2021, Mr Howell and Mr Hewitt both instructing and paying Mr Volodymyr Zayik so that he deliberately conducted himself in a way designed to undermine the work and reputation of the Claimants and success of the business, including difficult and erratic behaviour, arguing with the First Claimant, making derogatory comments about the Claimants to clients, talking negatively about the business to clients, and refusing to work under the Claimants’ instruction [Paragraphs 23-32](f) Between October 2021 and January 2022, Mr Howell and Mr Hewitt refusing to provide support to the Claimants even when they were aware of the excessive pressure the Claimants were under, including when the Claimants were off ill with COVID [Paragraph 32] (Comparator: Andy Howe, Matt Crowfoot or hypothetical)(g) On 5 January 2022, Mr Howell suspending the Claimants and proposing to discipline or dismiss them on unjustified allegations of gross misconduct [Paragraphs 33-34] (Comparator: Andy Howe, Matt Crowfoot or hypothetical)(h) On 5 January 2022, Mr Howell and Mr Hewitt notifying the Respondent’s staff and clients that the Claimants had been suspended for fraud and embezzlement and directing Chet Fahri to introduce himself as the Managing Director in place of the First Claimant [Paragraphs 35-36] (Comparator:Andy Howe, Matt Crowfoot or hypothetical)(i) On 10 January 2022, Mr Howell hacking or accessing the First Claimant’s personal LinkedIn account to view the Claimant’s activity and messages [Paragraph 37] (Comparator: Andy Howe, Matt Crowfoot or hypothetical)(j) On 12 January 2022, Mr Howell and Paul Bradley conducting the disciplinary hearing in an unfair and unreasonable manner, declining to properly explain the allegations or present any documentation or witness statements in support, or provide access to financial information such that the Claimants could properly respond, as well as threatening to involve the police [Paragraphs 38-47, 65] (Comparator: Andy Howe, Matt Crowfoot or hypothetical)(k) On 24 January 2022, Mr Howell dismissing the Claimants [Paragraph 50](l) On 25 February 2022, Mike McDonagh conducting an appeal which lacked impartiality and then dismissing the Claimant’s appeals [Paragraphs 50-52] 12. If so, did the action constitute less favourable treatment than would have been received by an actual comparator (where relevant, as set out within the Claimants’ Further and Better Particulars) or a hypothetical comparator who was white? 13. If so, was that less favourable treatment because of the First Claimant’s race? Direct Discrimination and/or Associative Direct Discrimination (2nd Claimant) It is important to note that at the start of the final hearing the Claimants’ representative confirmed that the Second Claimant, Ms Suurkivi was withdrawing the allegation of direct race discrimination based on her own race, as had been set out previously at issue 16 of the draft list of issues and was now only pursuing an associative discrimination claim relying on Mr. Correa’s, the First Claimant, race. 14. Did the acts set out at 11 (c) to (h) and (j) to (l) occur? 15. If so, did the action constitute less favourable treatment than would have been received by an actual comparator (where relevant, as set out within the Claimants’ Further and Better Particulars) or a hypothetical comparator who was white? 16. If so, was that less favourable treatment because of the Second Claimant’s race? 17. If not, was that less favourable treatment because of the First Claimant’s race? Harassment (1st Claimant) 18. Did the following conduct occur? (a) In a meeting between Colin Howell, Troy Hewitt and Volodymyr Zayik during January 2022, Mr Howell and Mr Hewitt openly mocked the First Claimant’s colour, stating that “Antonio is black, no one will believe him even if he tries to justify himself” and “if Antonio thinks he is a gangster, I know some gangsters myself.” The Claimants confirmed that Mr. Hewitt is alleged to have made the comments. 19. If so, was such conduct unwanted? 20. If so, was it related to the First Claimant’s race?[22]If so, did it have the purpose and/or effect of violating the First Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the First Claimant? Unlawful Deduction from Wages (1st and 2nd Claimants) 22. Do the following sums constitute ‘wages properly payable’ to the Claimants by the Respondent? Allegations (i), (ii) and (iii) were withdrawn on day 6 of the final hearing.(i)£2,962.25 wages for January 2022(ii)£7,020.57 profit-based bonus due in May 2021(iii) Approximately £15,000 bonus for the period between June 2021 and January 2022(iv) 10% gross commission for introducing a client to Assist Global Solutions (1st Claimant only)(v)£902.80 wages for December 2021 (2nd Claimant only)[23]If so, are those sums owed by the Respondent to the Claimants? Failure to Provide Written Particulars of Employment (1st and 2nd Claimants)[24]In respect of each Claimant, was the Respondent obliged to provide written particulars of employment?[25]If so, did it fail to do so? Findings of Facts23. The Tribunal reached the Findings of Fact as set out below based on the evidence presented. Where necessary, the Tribunal focused on documentary evidence to assist with reaching a finding of fact.24. The Claimants previously owned and managed a company called Sursec Security Limited (Sursec). It is agreed that the First Claimant, Mr. Correa, was employed by Sursec from 16 June 2006 and the Second Claimant, Ms. Suurkivi, was employed by Sursec from 1 October 2015. Volodymyr Zayik was employed by Sursec as Operations Manager. At that time, Mr. Zayik was a close friend of the Claimants. 25. Sursec provided security services for retailers.[26]Sursec got into financial difficulties and the Respondent purchased the goodwill and assets from the liquidators.[27]It is agreed that on 1 August 2019 the Claimants’ employment transferred to the Respondent under the Transfer of Undertakings (Protection of Employment) Regulations 2006. Mr. Correa, was initially employed as Head of Security, then Managing Director from August 2021. Ms. Suurkivi was employed as General Manager. As part of her role she was responsible for managing staff, payroll and general administration. Approximately 50 staff transferred in total, including Mr. Zayik.[28]Mr. Howell agreed a pay arrangement with the Claimants to try and mirror the pay arrangements they had with Sursec. From 1 August 2019 they were each paid a monthly salary of £1,000 and a dividend of £3,300 per month payable by virtue of a preference share. The Claimants were offered a share option of 40% of ordinary shares but never exercised it, and it expired. The intention of the parties was for the Claimants, after time, to become directors of the Respondent. This position was set out in an email from Mr. Howell to Ms. Suurkivi in July 2019.[29]Mr. Correa’s oral evidence was that they had written contracts of employment with Sursec and had supplied these as part of the disclosure process. Ms. Suurkivi said that she did not have any contract at Sursec, but accepted she would be responsible for provision of such contracts. We were not directed to any contract of employment in the Bundle.[30]The Respondent was, in 2019, a newly established company within the Assist Security Group Limited (Assist Group). Within Assist Group there were three companies, including the Respondent. The other companies were: Assist Security Limited and Assist Global Limited. The three subsidiary companies within the Group paid Assist Group a management fee for management and back-office support.[31]At the time that the Claimants joined the Respondent Mr. Hewitt worked at Allied Universal. However, from correspondence in the Bundle it appears the long term intention was that he would join the Assist Group.[32]In December 2020 the Claimants experienced some personal financial difficulties and withdrew £57,800 from the Respondent’s bank account, without notifying Mr. Howell or seeking approval, to fund work on their house in Portugal. Mr. Howell discussed the matter with the Claimants and agreed to a one-off preference share for them to take 75% of the retained profits to enable them to repay £50,000 and Mr. Howell agreed to loan Mr. Correa £5,000 personally.[33]In December 2020 Mr. Correa requested to meet with Mr. Howell to discuss an exit strategy. The Claimants were not happy with the working relationship and arrangements.[34]In April 2021 Mr. Correa asked Mr. Howell for a loan of £5,000 for a month and Mr. Howell replied that he would be happy to lend them the money from his own company.[35]In April 2021 the Claimants sought to renegotiate their shareholdings in the Respondent.[36]On 1 May 2021 Ms. Isom-Leonard started employment as the Group Compliance Director for the Assist Group.[37]In June 2021 the Claimants discussed pay arrangements with Mr. Howell. A new dividend arrangement based on a 50:50 split of retained profits was agreed in July 2021 and the basic annual dividend was increased to give each Claimant a monthly dividend payment of £4,300, in addition to salary of £1,000 per month. In addition, an agreement was made to pay 10% commission on the profit margin for introduction of business for close protection high net worth security passed to a relevant group company. One commission payment was made, but Mr. Howell’s evidence was that there was no further profit meaning no other commission payments were due.[38]In late June/July 2021 Mr. Correa exchanged emails with Paul Bradley, the Respondent’s external HR advisor, in relation to Mr. Soder. This exchange followed Mr. Correa emailing the management team about Mr. Soder’s workplace concerns. Mr. Soder was not an employee of the Respondent, but was employed by Assist Security Ltd. Mr. Bradley set out that he was engaged to help find a resolution in relation to Mr. Soder, and in short, he said that Mr. Correa’s involvement was not helpful. Mr. Soder was off work on sick leave and was unhappy about some matters.[39]Mr. Correa took Mr. Soder and Mr. Georgiev, both employees of Assist Security Ltd, out for a meal on 16 July 2021. Both Mr. Soder and Mr. Georgiev were both were on sick leave from Assist Security at the time. He discussed with them their concerns about Ms. Isom-Leonard, and reported them to Mr. Howell.[40]In June/July 2021 the Claimants were involved in a re-tender for an existing client, Dior.[41]In an email from Ms. Suurkivi to Mr. Howell dated 16 July 2021 she attached a document called June files and within the email, among other things, she said: “On positive note – it’s not official yet, but Dior should be ours (coming from top).”[42]In an email reply on the same day Mr. Howell said: “All sounds very positive moving forwards. Can’t wait for the official notice from Dior. I will set up the paye payment for Monday. And start the June figures. Can I ask what we are paying Vlad’s company for?”[43]Ms. Suurkivi replied: “Hi, What ive done is that those guys who didn’t yet register as ltd, ive paid them out through Val to make sure im not paying self-employed. As our company gets assessed, I thought its better to pay out through ltd than pay self-employed. Also Val is VAT registered so it looks even better than just any LTD, its just temporary fix as from 1st of August all Dior staff has to be PAYE. Dior told us during tender that we had 30 days to switch all LTD to employees. So I didn’t want to cause more upset amongst the guys by pushing them hard registering company, taking out insurance getting accountant and me telling them 2 weeks later, btw LTD is not a option, you need to be employee. Ant is meeting with every Dior employee individually this and next week explaining them the situation. Its going to be so tough convincing existing guys to £10paye from 11-12 ltd and there isn’t much staff available overall on market at £10paye…. But lets see Dior is working with Antonio trying to push for pay increase from head office.”[44]Mr. Howell replied saying: “Thanks Evelin. I wasn’t aware, so just need to know in case it was training or something else. Certainly makes sense and a short term fix as you say. Good lusk with the migration of workers. Maybe we can find some added benefits that cost little to sweeten the blow. I’ll have a think”.[45]On 24 July 2021 Mr. Correa emailed Mr. Howell and part of the email relates to Dior. It says: “I just know that Dior is so concerned about this Ltd situation, and I am quite sure it will be a rocky start. I have a strong feeling that he will be asking us to provide sample work relevant to the security team at Dior for reassurance: 1. Employment Contract 2. Employment Handbook 3. Grievance Policies and Procedures 4. Officers, Supervisors, Managers and potentially Account Manager job description (it is possible so he can understand our recruitment and how we identify suitable candidates) 5. Possible even a declaration that we are not to use LTD on any of their sites as from 5th of August 2021.”[46]On 26 July 2021 Mr. Correa emailed Ms. Isom-Leonard and Andy Howe (Managing Director of Assist Security Ltd). Mr. Howell, Mr. Hewitt, Dr. McDonagh, Ms. Suurkivi and Mr. Zayik were copied into the email.[47]In the email he says Dior would like employee contracts and a sample handbook by Friday. He also says: “So far the pay rate option is £10 per hour for the current officers and £12 per hour for Supervisors. We are currently reviewing an increase for the team, by removing a night shift cover at REDACTED Warehouse. Evelin is working on the breakdown cost. We hoping to be able to offer most of the team £10.85 per hour with that exercise, giving us a 66K to play with.”[48]Ms. Isom-Leonard then exchanged messages regarding provision of documentation.[49]Within his witness statement Mr. Correa states Ms. Isom-Leonard “started to bully Mr. Rob Soder, Ms. Lisa Soder, and Mr. Stoyan Georgiev.” There were discussions and correspondence between the parties regarding Mr. Correa’s involvement in the concerns regarding Ms. Isom-Leonard’s management of staff.[50]Mr. Georgiev left Assist Security Limited and went to work at The Landmark Hotel, a client of Assist Security Limited. Mr. Zayik subsequently raised concerns about Ms. Isom-Leonard’s approach with Mr. Correa.[51]Ms. Isom-Leonard’s witness statement explains that she and Mr. Correa attended a software demonstration conducted by Falcon, via Zoom. She states that Mr. Correa: “was not particularly professional during this meeting. He was overly negative about the software and rude to the presenter rather than asking constructive questions. This led to the presenter feeling very uncomfortable. I was forced to interject during some of Antonio’s comments because they were unproductive or unprofessional and I was concerned with the impression the business was giving at this meeting, particularly if we wanted to work with them going forward.”[52]Ms. Isom-Leonard’s evidence is that she did not say “that is not important” or cut Mr. Correa off, but did say they should move on discuss further offline as she considered he was being discourteous to the presenter.[53]Mr. Correa does not provide any information about this allegation in his witness statement.[54]On balance, given Mr. Correa does not deal with this in his witness statement, that Ms. Leonard does not recall making the comments as alleged and that the Tribunal was not directed to any corroboratory documents the Tribunal find that Ms. Leonard did not shut Mr. Correa down or say “that is not important” but she sought to manage his unprofessional conduct in the meeting, and did refer to moving the meeting on and discussing offline.[55]On an unspecified date in July 2021 a meeting took place between Mr. Correa, Mr. Howell, Mr. Mike McDonagh, Ms. Lisa Soder and Ms. IsomLeonard to discuss the implementation of Humanity, workforce management software, in the Assist Security Group business.[56]Mr. Correa’s witness statement says: “However, once I stepped out of the meeting room. Ms. Ally Leonard condescendingly approached me, speaking to me in a tone intended to belittle and undermine my efforts.” Mr. Correa does not explain what he says was said to him, or how. Mr. Correa, in his witness statement, said Ms. Lisa Soder witnessed the event, but she does not provide any detail in her witness statement. We were not directed to any corroboratory evidence in the Bundle.[57]Ms. Isom-Leonard, in her witness statement, explains that Mr. Correa wished to use the Humanity software across the group but she considered other systems and provided a report with three system options to the board. She explains that she does not recall speaking to the Claimant in a “loud, hostile or condescending tone”.[58]On the balance of probabilities, based on the above findings, there is not sufficient evidence to conclude that Ms. Isom-Leonard spoke to Mr. Correa in a loud, hostile of condescending manner after the meeting.[59]On 21 August 2021 Mr. Howell emailed Ms. Suurkivi with queries about financial matters and concerns about profit relating to July 2021. Within the email he said: “I also noticed Dior overpaid us so wonder if there was a missing invoice?”[60]Ms. Suurkivi replied with various comments, and in relation to Dior matters she said: “Also I think this month subsistence was high as Antonio met up with everyone this month including all clients and guards plus lots of pampering of Dior managers so he did 1 year meetings in one month. There was lots of drinks convincing guys to stay as all Dior workers had to accept £10paye for August as increase is effective only from September plus they all had to switch from ltd to paye. Dior invoice – there is credit applied to Dior invoice which they hadn’t applied to invoice payment. They had two month event but they had to close for a week due to self-isolation requirement.”[61]Mr. Correa and Mr. Zayik attended the Landmark Hotel and met with Mr. Georgiev on 6 September 2021. Mr. Correa says Mr. Georgiev was not happy with Assist Security Limited’s services and requested that he take over the hotel’s security operations. Mr. Correa and Mr. Zayik had posted pictures on social media of them having drinks with Mr. Georgiev.[62]Assist Security Limited dealt with hospitality and events. The Respondent dealt with retail clients.[63]Mr. Correa sent a message to Mr. Hewitt and said: “Thursday Captain, any good? By the way visit Landmark today. Service is not good at all. So it will be up for grabs if no improvements and if corporate is to lose it I will take it “So you know captain”.”[64]Mr. Howell asked Mr. Hewitt to speak to Mr. Correa about the matter and explain why Assist Group wished to keep the sectors separate within the group companies. Mr. Howell had not been informed of any problems with the services by the client. Mr. Correa and Mr. Hewitt exchanged multiple messages on the matter.[65]Mr. Soder resigned from his position on 4 September 2021. Mr. Soder managed a Merlin Entertainment contract.[66]Mr. Howell had some concerns regarding Mr. Correa’s engagement with Mr. Soder.[67]At 19:31 on 6 September 2021 Mr. Zayik messaged Ms. Suurkivi saying: “Also this is what Antonio approved for me to invoice for Jarek £10.50 invoice for £12.00 Naldo £11.00£12.00 David £11.00£12.00 Geilson £11.00£12.00”.[68]On 7 September 2021 Mr. Howell spoke with Mr. Correa and raised the issues relating to Landmark and Merlin. The discussion was heated. Following the discussion Mr. Howell transferred £190,000 out of the Respondent’s bank account and instructed the bank to remove Ms. Suurkivi’s bank account access. Mr. Howell emailed Ms. Suurkivi at 13:09 on 7 September 2021 and within the email he said: “Further to my conversation with Antonio earlier today, I have had to take control of the bank account until we get things resolved between us, which hopefully will only be in a few days. Hence the transfer of funds earlier this morning” and asked her to send over information about wages.[69]Ms. Suurkivi replied and with the response attached files relating to payments. Within her response she said: “Im sending you separate file for breakdown of self-guys that go through VLA and VLA is VAT registed 23,367.81.” The file set out payments for 13 security staff for Mr. Howell to process. Mr. Howell did not pay attention to particular entries, and transferred bulk amounts in the next few days: £3,345.00 on 8 September 2021, £4,200 on 9 September 2021 and £20.022.81 on10 September 2021. A total of £27,567.81 (which is £23,367.81 + £4,200).[70]Following the heated discussion on 7 September 2021, Mr. Correa requested an exit strategy and various discussions took place to discuss the Claimants’ exit from the Respondent.[71]Discussions took place and documents were produced based on the Claimants buying the Respondent business. The proposal was that a new company be set up to purchase the Respondent as the Claimants had been considering bankruptcy. Initially there were some discussions that Mr. Zayik’s own company, VLA Connect Ltd, would be used to purchase the Respondent, but Mr. Zayik was not happy to agree to this and therefore a newly established company, Measure Group Limited, was proposed.[72]On 10 September 2022 there is a text message exchange in which Ms. Suurkivi tells Mr. Zayik that Mr. Howell has transferred £4,200 too much to him and asks for Mr. Zayik to pay it back.[73]On 14 September 2021 Ms. Suurkivi sent Mr. Howell a long email running to three and half pages setting out how unhappy she was with the working relationships and the way business within the Group was being run, namely that she felt that Mr. Correa was not being listened to and she thought that Mr. Correa should have a role in the leading of the Group, rather than Ms. Isom-Leonard.[74]On 23 September 2021 Mr. Howell emailed Ms. Suurkivi raising concerns about profit margin and asking Ms. Suurkivi for her view.[75]Within the Bundle there are Whatsapp message exchanges for a group called One Legal Eagle. Some of the group member names are redacted but the members are the Claimants, Mr. Rob Soder, Mrs. Lisa Soder, Mr. Zayik and Mr. Soder’s relation, Ray. Within it there are various messages relating to the Claimants wish to exit the Respondent. Only key messages are detailed in these findings of fact.[76]The relationship between the First Claimant and Mr. Zayik started to become strained and difficult around mid-October 2021.[77]Mr. Howell sent the Claimants draft exit documents on 20 October 2021. However, a deal was not agreed. The documentation contained restrictive covenants. The Claimants did not agree to the proposals.[78]On 21 October 2021 Ms. Suurkivi put a message on the One Legal Eagle group and within it said: “Myself and Antonio are brainstorming here and thought ways how to reduce the list of “their clients” to keep some of our doors open…We know you are busy but when you have a moment we would love to hear your thoughts/suggestions as end of day we do want to work with L and R and also take some of their clients as L and R have longstanding relations with them.”[79]On 26 October 2021 Ms. Suurkivi messaged Mr. Howell expressing dissatisfaction with the Assist Group. On the same day Ms. Suurkivi posts on the One Legal Eagle group asking if she should threaten them and references Mr. Hewitt and a memory stick. On the same day, on the One Legal Eagle group, Mr. Correa wrote: “R you should def reach out to ACAS. We will all be doing so to rough them up”.[80]As the exit negotiations failed, the Claimants continued in their roles. It is clear from the emails regarding the exit negotiations that the relationship between the Claimants and the Respondent had become very difficult. On 26 October 2021 Ms. Suurkivi emailed advisors saying “We just want to move on and get far away from these people”.[81]Following the breakdown of the exit negotiations, at around the start of November 2021, Mr. Howell, within a message to Mr. Correa, said “I will assume its business as usual and to that end would like to set up a meeting with you to discuss day to day operations.”[82]On 2 November 2021 Ms. Suurkivi posted on the One Legal Eagle group: “Weve been advised that the next best thing to do is for Antonio to resign based on statutory contract as there is no contract in place And he is free after 30 days to do whatever he wants As I continue working. I can meanwhile distract them, to remind them 50% of preference shares supposed to be issued (these haven’t been issue in companies house) and can threaten to sue them for broken promises.”[83]There is a reply from Ray, on the same day: “That is what I advised Antonio to do in the first place and take clients quietly You’re going to have a job on your hands now as they’ll be ultra aware given the negation they have entered into You have no restriction and can contact clients etc Sorry, got confused. Important thing now is you must strategise your exit. You have no restrictions. They’ve rescinded their offer. Take them to the cleaners, but its going to be difficult now as they’ll be watching your every move”.[84]Ms. Suurkivi replied on the same day: “Any tips? Should Antonio resign and inform verbally clients but kind of tell them, hey don’t give notice until day 32.”[85]Ray replied: “That leaves you anc L in the business. Stay until they pay you off”.[86]During the exit negotiations between the Claimants and Mr. Howells, the Claimants fell out with Mr. Zayik.[87]There was a physical altercation between Mr. Correa and Mr. Zayik in late October/early November 2021.[88]Mr. Zayik’s behavour around this time was erratic and bizarre. He was having difficulties in his personal life and there was police involvement.[89]On 14 November 2021 Mr. Zayik resigned from the Respondent.[90]On 15 November 2021 the First Claimant blocked Mr. Zayik on WhatsApp.[91]On 15 November 2021 Mr. Zayik messaged Mr. Howell. Mr. Howell did not know Mr. Zayik well, and had only met him a few times during his employment with the Respondent.[92]Mr. Zayik contacted Mr. Howell following his resignation asking to meet as he was uncomfortable about arrangements with Mr. Correa. Following his resignation, here were two initial meetings between Mr. Howell and Mr. Zayik. One took place in the car park and the other at the Marriott hotel on 25 November 2021. Mr. Howell cannot remember at which meeting Mr. Zayik informed him that there had been a fraud committed but recalls that Mr. Zayik said the Claimants had been committing fraud against the Respondent and that he had been involved and had facilitated it through his company, VLA Connect Ltd. Mr. Howell’s witness evidence is that Mr. Zayik told him that they had inflated charges for workers in the Dior contract and were splitting the profit.[93]Both Mr. Howell and the Claimants all state that Mr. Zayik was behaving erratically at that time.[94]Mr. Howell asked Mr. Zayik for evidence of the fraud allegations. A few weeks later Mr. Zayik gave Mr. Howell copies of the bank statements for VLA Connect Ltd for the period 1 September 2021 to 29 November 2021. Set out further below is a summary of the payments made to VLA Connect Ltd from the Respondent and from VLA Connect Ltd to the Claimants.[95]There are a large number of text messages and audio message transcripts within the Bundle at pages 328 – 342 and 852 to 866. The Tribunal considered them all, but have set out details of what it considered to be the key messages necessary to make findings of fact and reach conclusions on the issues as specifically put in this case. As a general finding of fact, the Tribunal find the message exchanges to be mostly initiated by Mr. Zayik, and they were lengthy and he would often send several messages in close proximity. The messages and the tone show a significant dislike for Mr. Correa. Mr. Howell did not reply to all messages, and generally his responses are much shorter. Mr. Hewitt engaged in more conversation with Mr. Zayik.[96]It is important to bear in mind that Mr. Hewitt was not employed with the Respondent at the time this claim is about and did not join the Assist Security Group until April 2022. We find that at the time he was liaising with Mr. Zayik the intention was that Mr. Hewitt was going to join the Group and was assisting Mr. Howell as they had other business interests together and were friends.[97]On 19 November 2021 Mr. Zayik messaged Mr. Howell saying that he was thinking of buying off Mr. Correa’s debt and asked to meet. Mr. Howell replied saying he was not sure what debt he meant and in further exchanges said that nothing was owed, that he owned the company but the Claimants changed their minds about buying the company. Mr. Zayik also sent images of messages that were not included, but referenced Mr. Correa telling people different things.[98]On 22 November 2021 Mr. Correa and Mr. Howell exchanged messages relating to the potential purchase of the Respondent and the use of a new company to do this. Mr. Correa said: “The idea of a new company is an option for us, however we are in discussions with Rossi and another company, as we are thinking to buy a company that is ACS approved worse case do a merger.”[99]On 22 November 2021 Mr. Zayik left Mr. Correa an audio message saying he no longer wished to know him. It was clear that the falling out between them was significant. Within the audio he says: “Anything that comes into my account to VLA will simply not going to go back to you.”[100]Mr. Zayik and Mr. Howell met on 25 November 2021 at the Marriott Hotel. It appears that following the meeting Mr. Zayik sent Mr. Howell a number of contact cards, images and forwarded some audio messages. On 25 and 26 November 2021 Mr. Zayik left audio messages with contacts and people that worked for the Respondent. In essence the messages from Mr. Zayik to others alluded to change, Mr. Correa seeking to move away from the Respondent and for the recipients to not mention anything to Mr. Correa or do business with him.[101]In the evening on 25 November 2021, Mr. Zayik left an audio message for Mr. Howell. For ease, the complete message is set out below: “Colin I wanted to let you know that after what Antonio did with this Instagram account? I have no mercy for him. No mercy at all. Okay, I have come across. I have known his best friend called Silvio, who used to be our account manager back in the days when Sursec used to do well, for many years. I never never, I'd never have give up on him because he's a good guy. And I'm just talking to him now. He's the manager in SQR. And I'm going to bring him over to run Antonio's to do Antonio's job. And he remembers all the clients so basically, he would fit like a hand in glove. So yeah, I'm going to have a little thing about it. I'll call you back tomorrow as possible or maybe at your next convenience. And we we strike with no mercy because he does not deserve to do what he does. Plus I'm taking him to the police. With all the evidence that I have. He'll he'll lose his licence before you know it. Thank you.”[102]On the same evening Mr. Zayik left an audio with Anthony, a contact at a client for the Respondent: Hi, Anthony. I just thought I'll give you a quick voicemail. Please sit tight for a couple of weeks. Okay, I'm making my rearrangements here. Don't tell anything to Richard because Richard is feeding information to Antonio. Okay. I'm going to you will receive an email from directors of assist service group that Antonio works under. Antonio decided to at first he wanted to go with VLA and why we met and spoke but now he's trying to run away to another security company because of a key factor from him. Okay, so I had a meeting with Colin, he's is he's an owner of assists service group Okay. Shared him prior to his contract. I've shared key clients contact details with him and you are one of those you will be receiving an email from him in relatively near future I am still employed by assist services group no longer buy assist services retail and that's what you need to understand and you must not tell this that to Antonio BECAUSE HE WILL FUCKING shake his shirt his pants because he does not realise the magnitude of entire arrangement. So everything for [PO] needs to stay the same as this service group retail because nothing will change. Okay, and I will go quiet for a week or two. Because I need because that's the best way and for you to see the legit factor of that. I will send you my new payslip due will which will be issued, I believe, beginning of December, which isn't too far away anyway, for you to sort of understand that I'm, I'm still around, and we have arrangements between you and me. remain in place. Just make sure you don't receive anything from Antonio now. Okay. I'll leave it at that. Thank you byebye.[103]On 26 November 2021 Mr. Correa messaged Mr. Howell informing him that Mr. Zayik had messaged him asking to meet and asking whether he thought he should meet him. Mr. Howell replied: “Yes, I would meet him and try and sort this out.”[104]On 26 November 2021 Mr. Zayik left an audio message with a client contact: Okay, Hey, Sean, how are you? I thought, I'll give leave you a quick voicemail won't take too much time. I leave this voicemail in confidence with you. Because look, Antonio is going around and bitching and moaning to every single member of staff within [SL] and outside [SL] I mean security member of staff that [SL] is about to go because of, you know, the drama that was caused between me and Morgana and he's so so fabricating the fact that Morgana had to resign because of that. And we all know that she put her resignation for different reasons. Okay. I just want to tell you one thing, he pissed me off a lot. Okay. I've helped Antonio to run his business for the past seven years. And I was dedicated and loyal, business partner of his. Now, he is trying to shift away from the group that he works for. towards a company called, I believe Rossi services that have quite a few luxury brands in London, plus, very strong presence in this village. I had the meeting with Colin, the group director and ultimate decision maker and final beneficiary. He is not happy with and Antonio's actions, and, you know, and behaviour, and they had quite a few things against him anyway. And then I've been thinking company where my money went from companies that etc. Long story short, Sean, I need to go quiet for a week or two. Okay. In the meantime, don't undertake any offers from Antonio with regards to changing company etc etc, because what he's trying to do is completely you know, unethical and, you know, from business point of view, you just don't do things like that. Okay. He behaves like crook I'm going to send you a few voicemails that he sent to me for you to realise what this guy is all about. He just acts nice but he has a guilty mind all day long. Okay. I will be taken over his his job in due time, okay. And you and you will receive emails from the directors, etc. But please, when you get chance, obviously sorry for such a long voicemail. Listen to some of the voicemails sent to him. And let's keep it confidential for now. And in the meantime, much love and don't miss me too much. Bye bye[105]On 29 November 2021 Mr. Howell sent Ms. Suurkivi an email regarding financial matters including margins, overheads and VAT. Within the email he said: “Both wages and subcontractor payments are higher that usual. Can you send me the breakdown for last month so I can review and any observations would be appreciated.”[106]On 7 December 2021 Mr. Zayik sent messages to Mr. Howell about replacing staff at the Landmark Hotel, a contract run by Assist Security Ltd, with “two good guys from retail … so Antonio can even sweat more’.[107]On 8 December 2021 Mr Zayik left Mr. Howell an audio message, as below: Hi, Colin, hope you okay, just to let you know, spoken to Goeffrey at Christian Dior. literally minutes ago, he rang me up for some urgent maintenance work to be done over the night in Dior. Sloane Street. And it's not actually me calling him it was like the other way around. And I said and he was out I'm so sad to hear you're gone so Geoffrey look make no mistake, I'm not gone. I'm just gonna quiet for a while, because it was, you know, needed let's put it this way. And I spoken to the owner of the company Colin and I've reassured him that you know, we will get this right as long as we have a good English guys looking after Dior account, because we understand we need smooth communication. And, and you know, and also explain to him that you are accountant, because he likes talking to people who ultimately make decisions make decisions. And Antonio's mistake at all times was oh, let me speak to Everlane because you know, that way he would have bought himself more time to do the dodgy shit when it comes to charges and POS purchase orders etc. So for Geoffrey, knowing that you are an accountant and you are a company owner, and you come from assets and then you are going to have another two English guys looking after the account and ultimately entire retail division was like a music to his ears. So that's another box tick today and also met Andy earlier. We can talk about it when we get more time to go through details, but it's all looking nice and pretty. Have a good day.”[108]On 9 December 2022 Ms. Suurkivi and Mr. Howell exchanged emails headed Estonia payment. Within the chain Mr. Howell said “Don't forget when you can send me the breakdown for the measure payments”. Ms. Suurkivi provided a small spreadsheet with some names and one sum, e.g. V - £745. Measure was being used as a vehicle to pay staff.[109]In oral evidence Mr. Howell accepted that Ms. Suurkivi, when requested, had told him on 9 December 2021 who the staff were at Measure for whom the Respondent was asked to make payments. However he said that these were staff who had been transferred from the Respondent and that he considered it was a clear transfer of business away from the Respondent.[110]On 10 December 2021 Mr. Zayik sent an audio message to Ms. Suurkivi saying that he had been speaking to Mr. Howell about facilities matters but had not discussed the Respondent’s matters with him. There is reference to Mr. Zayik saying that Mr. Correa wants him to go to prison.[111]Ms. Suurkivi replied to Mr. Howell on 10 December 2021. She made a number of comments about adjustments, and said she did not believe there were genuine intentions on the exit strategy and asked for their legal fees to be refunded. She raised concerns about the monthly management payment to Assist Group. Specifically, in relation to Dior rates, she said: “Unfortunately at the moment client rates are moving at much slower speed than security rates. We are unable to find new staff for less than £11-12paye or £12-14 ltd. And that’s current market norm. Dior with their £10-10.85ph has to increase, we are re-thinking how to approach and highlight this to Dior. Mainly due to staffing challenge it is difficult to run such a contract on so low rate.”[112]On 17 December 2021 Mr. Zayik met Mr. Hewitt for drinks. They exchanged messages on 24 December 2021 and Mr. Zayik said he had been in the police station due to Mr. Correa and then entered an exchange regarding a transition process and Mr. Hewitt advised waiting until the New Year.[113]Mr. Zayik left a voice note for Anthony, who is understood to be a contact at one of the Respondent’s clients. It is labelled 3 January 2022 but given the contents we consider this to be an error and that it as sent a few days before Christmas 2021: “Hey Anthony, live in your voicemail, for the sake of keeping records and file, just to let you know that on the 26th of December this year, we will be sending out official communication to all clients. some [L], some of the [R] and of course, [PO], that new management. And obviously, the communication will come from an owner of assist services group. And assist return security belongs to a Systems Group. Needless to say, so there will bea new account manager all English Chet is his his background is his Greek background born and bread in UK. He was he was UK, UK security manager and worldwide eventually, but you know, before COVID Things have gone a bit nasty for him. But he's a very, you know, prominent and loud figure I would say in the world of luxury retail, he was head of Gucci, that speaks for itself. On the 26th of December, I will go to Bicester village to do we see some operations there. And I will be stepping back from result division all together because we've got some plans lined up for for a access control management for technical security more than than man guarding. So there will be new account manager, there will be new account assistant manager and obviously booking scheduling supervisors that are already in place. Until then, I'll stay quiet, which is only a few more days. And then we can have our relationship on the low. If you know what I mean. I would be rather seen at the back of the stage. But I'm done with this book in scheduling. Funnily enough. I keep getting text messages from Kate, Kate, no one not even know [PO] that I'm gone. And that even speaks for itself. Antonio simply realise that, you know, if he tells clients that I'm gone, he will not look good to him or on him rather. But, you know, I gave him more than enough opportunities to get things right. He decided to be an idiot with me. And Antonio is an employee of the Assist services group. And you know, what he was trying to do? And you and I know that he was trying to do it. But then he was stupid enough to upset me halfway through. I got I got him opportunity on two occasions to get things right he chose not to. So look underneath. Karma is a bitch you and I know it. Let's just stay put and once you receive an email, we can make things official. Merry Christmas to George out[114]On 24 December 2021 Mr. Howell messaged Mr. Zayik saying “Hi Vlad, the guys mentioned Boxing Day but we aren’t able to do that as we need to coordinate visit with meeting them. We should have a date next week and then do it the week after, as originally planned. Need this as covert as possible please so can you keep this quiet and we will update you as things progress.”[115]On 26 December 2021 Mr. Zayik visited some of the Respondent's client stores and informed Mr. Hewitt that he has given gifts to some of the workers.[116]On 30 December 2021 Mr. Zayik joined a zoom meeting with Mr. Howell.[117]Mr. Howell made arrangements for Chet Fahri, an Assist Group Director, to assist in managing the Respondent’s business whilst the Claimants’ disciplinary process was carried out. Mr. Zayik met with Chet to give him information about operations. The earliest reference to the involvement of Chet is in the message from Mr. Zayik above. However, in a message from Mr. Hewitt to Mr. Zayik on 30 December 2021, he says: “Have a chat to Chet” and Mr. Zayik asks for his number.[118]On 3 January 2022 Mr. Zayik messaged Mr. Hewitt and said: “Will drop all contacts I have to Chet so he can put ball in motion. Need to draw the line between myself and retail”. He also said: “With regards to my twomonth outstanding salary I’m happy to turn a blind eye on (as I didn't really work although have spent a lot of money”. Mr. Hewitt replied: “I know you have and we will sort it out for you. Thanks for your help.”[119]On 4 January 2022 a number of messages were exchanged and within the chain Mr. Howell messaged Mr. Zayik and said “Ok great, be good if you can iron out last bits with Chet, we are then ready to move forward” .[120]Mr. Zayik messaged Mr. Howell saying “Just wrapping up meeting with Chet, have passed on all the key contracts and briefed accordingly”.[121]Mr. Howell messaged Mr. Zayik and said “not sure we should of told him about the fraud issue” and Mr. Zayik replied “that’s fine he needs to know that Antonio is a cunt” to which Mr. Howell replied “Yeah. I’m sure everyone about to find out!”[122]Mr. Howell had already made arrangements to meet with the Claimants to discuss management changes sought by Mr. Correa on 5 January 2022. However, Mr. Correa cancelled the meeting at short notice as he was unwell. Mr. Howell had intended to raise his concerns about fraudulent activity at the meeting, and when it was cancelled, he emailed the Claimants a letter notifying them they were suspended. The letter set out the allegations as: 1. You have fraudulently inflated charges from limited company contractors for work undertaken by security personnel by conspiracy with VLA Connect Ltd 2. You have been paid by VLA Connect a share of those inflated charges amounting to at least £16,672.90 (subject to further investigation and verification) 3. You have continued to inflate limited company charges through a conspiracy with a second entity Measure Group and have benefited fraudulently in the same way; 4. You have been seeking to unlawfully divert contracts from the Company to VLA Connect and Rossi Security for private gain.[123]Attached to the suspension letter were six documents, comprising: a spreadsheet produced by Mr. Howell, email from Ms. Suurkivi to Mr. Howell regarding payments and VLA Connect Ltd bank statements for September to November 2021 which showed payments had been made to the Claimants.[124]The suspension letter warned of the possibility of dismissal, and that potentially the allegations amounted to fraudulent activity.[125]The letter invited them to a disciplinary meeting on 11 January 2022 and informed them of their right to be accompanied.[126]On 5 January 2022 Mr. Howell messaged Mr. Zayik and said both Claimants had been suspended and that “Chet is making rounds with Dave, Andy, Mike and Barry, Might need your support but they will reach out”. On the same day there was also messages indicating that Mr. Zayik was speaking with the Respondent’s clients and Mr. Howell asked him to reassure clients.[127]On 5 January 2022 Mr. Howell and Mr. Zayik exchanged further messages. Mr. Zayik sent Mr. Howell a number of images, which are omitted, but we find to be screen shots of messages from the One Legal Eagle WhatsApp group.[128]Some of the messages related to Mrs. Lisa Soder, including from Mr. Zayik to Mr. Howell “Lisa needs to tell Rob to speak to his cousin Ray to stop advising them” to which Mr. Howell replied “No best he continues as he’s American and not British. Reading his advice it’s all over the place.” There is also reference to Mr. Zayik not taking Mrs. Soder to VLA Connect Ltd[129]Chet Fahri visited Respondent clients, with others, on the day the Claimants’ were suspended. The Bundle contains a screen shot of a business card for Chet Fahri, taken on 5 January 2022. It states his name, Managing Director, Assist Retail.[130]On 5 January 2022 a letter was sent to security officers. Within it, it stated that the Claimants were “temporarily away from the business and in the meantime and to ensure continuity of service Mr. Chet Fhari (Assist Group Director) will look after the Retail Security division during their absence.” The letter also gives two sentences about Mr. Fahri’s experience in the industry.[131]Following the suspension of the Claimants, Mr. Howell asked Ms. Isom-Leonard to access Mr. Correa’s LinkedIn account. The account was registered to Mr. Correa’s work email address and the Respondent requested a password change via the email account. The account had been used by Mr. Correa when he owned and worked at Sursec. Mr. Howell considered that the account was owned by the Respondent as it had bought Sursec. Mr. Correa, in his witness statement, acknowledged that Ms. Isom-Leonard accessed his LinkedIn account.[132]Within the Bundle there is a screen shot of messages on LinkedIn between the Claimant and Vito Pignatelli, a manager at one of the Respondent’s clients, on 27 December 2021. This does not appear to be the full exchange, but the message refers to providing personal numbers and arranging a call. Mr. Howell says he considered this to be an attempt by Mr. Correa to poach the Respondent’s business.[133]It is not clear on what date in January 2022 the Claimant’s allege that Mr. Zayik met with Mr. Howell and Mr. Hewitt in relation to the allegation that Mr. Hewitt said “Antonio is black, no one will believe him even if he tries to justify himself” and “if Antonio thinks he is a gangster, I know some gangsters myself”.[134]The Claimants were informed by Mr. Zayik, sometime later when they became friends again, that Mr. Hewitt made these comments. They did not hear them directly. As set out above, we do not consider Mr. Zayik to be a reliable witness.[135]Mr. Hewitt’s witness statement states that a meeting took place on 5 January 2022. He says that when he was suspended Mr. Correa said to employees of the Respondent that he would go to Mr. Hewitt’s house and beat him up. His evidence is that he did not mock Mr. Correa’s colour and did not say “Antonio is black, no one will believe him even if he tries to justify himself”.[136]Mr. Zayik says, within his witness statement at paragraph 52, in relation to matters on 25 November 2021, that “Troy Hewitt agreed to this plan and indicated that as Antonio Correa is black, this plot was likely to be believed as people would not ask questions, and from his experience, no one would want to get involved.” However, at paragraph 58 he says, with reference to events on 27 December 2021: “During my chat with Troy Hewitt, he made remarks about Antonio Correa, such as “Antonio is black; no one will believe him even if he tries to justify himself,” and we would both laugh.”[137]In relation to the alleged comment “if Antonio thinks he is a gangster, I know some gangsters myself” Mr. Hewitt accepts that he made this comment, and explains that this was said in response to Mr. Zayik telling him and Mr. Howell that Mr. Correa had “arranged for Vlad and me to be “sorted out” which I understood he meant that he had arranged for us to be killed. I was concerned about whether this was a genuine threat but I was trying to diffuse the situation by being a bit “tongue in cheek” about taking protective action.”[138]Mr. Hewitt’s evidence on this point was not questioned or challenged in cross examination and on balance, taking the evidence of Mr. Hewitt and Mr. Zayik into account, we accept Mr. Hewitt’s evidence on this point, that the first comment was not said and the second comment was said in the context as explained.[139]The First Claimant did not comment on the allegation of harassment in his witness statement but in oral evidence, when it was put to him that Mr. Hewitt was responding in a jokey way that he could fight fire with fire, the First Claimant’s replied: “Perhaps, not sure”.[140]On 6 January 2022 Mr. Zayik met with some of the Respondent’s clients and updated Mr. Howell after.[141]On 7 January 2022 Mr. Zayik exchanged a number of text messages with Mr. Hewitt regarding pay arrangements for the Respondent's workers. On the same day Mr. Zayik said: “Antonio Xavier needs to disappear asap, that will set a good precedent… another one is Oleksandr S who is a supervisor in [E], who has to disappear too”. Mr. Hewitt, within one of his responses, stated: “Well you are the consultant”.[142]On 8 January 2022 Mr. Hewitt and Mr. Zayik exchanged a large number of messages. Mr. Hewitt messaged Mr. Zayik to tell him Chet Fahri had visited the stores and there was no need for him to go as it was causing confusion, he also mentioned a formal complaint being raised following Mr. Zayik’s visit to one store. Mr. Zayik told Mr. Hewitt he knew what he was doing and “You will receive apology from the very same bitch who sent that email by Tue”. Mr Hewitt replied “No mate just leave it please”.[143]Later the same day Mr. Hewitt said: “Antonio has taken this way too far and poor Colin has been having it tough trying to keep things in line. Antonio was given a great deal and threw it in Colin’s face and has now tried to screw me by thinking he can get me in trouble for nothing so unfortunately Ant/Evelin need to learn to do things legal and properly.”[144]On 9 January 2022 Mr. Zayik messaged Mr. Hewitt saying: “It would be good if Colin expresses to Evans what a cunt Antonio is, to close the chapter once and for all. Evans has a big say in Dior”. On 11 January 2022 they exchanged messages regarding Mr. Zayik suggesting he was going to give Evans a £500 for a birthday gift and Mr. Hewitt suggested he didn't need to, and Mr Howell could give a performance bonus.[145]The Claimants attended a disciplinary hearing on 11 January 2022. In attendance at the meeting were the Claimants, Mr. Howell (who acted as the Respondent’s witness and the decision maker) and Paul Bradley, HR Consultant.[146]No notes were taken at the meeting. The Claimants had provided a two page position statement, following obtaining legal advice, which said they refuted the allegations and were confident there were proper explanations and that the directors of the company were aware of and approved the payments being made but that they could not answer the allegations fully due to not having access to relevant documents and emails and having only a short time to prepare for the hearing. The Claimants requested a list of documents and asked for the disciplinary meeting to be adjourned. Further, the Claimants said that the allegations appeared to rely on information from Mr. Zayik, but he was fundamentally unreliable. They also raised concerns about the Respondent spreading false and malicious information. The Claimants did not wish to answer any questions at the meeting because they were scared of the legal consequences of the allegations.[147]In both their witness statements and oral evidence the Claimants said that in the disciplinary meeting Paul Bradley made reference to calling the police. Mr. Howell does not address this point in his witness statement. As there are no notes of the meeting it is difficult to make definitive findings about what was said. The Respondent did later refer the Claimants to the police. On balance, noting that the Claimants evidence is consistent on this point, that the Respondent was concerned the Claimant were committing fraud and the later referral the police, the Tribunal find that Paul Bradley did threaten police involvement at the disciplinary hearing.[148]The Position Statement was sent with two attachments, one being a screen shot of messages between Ms. Suurkivi and Mr. Zayik regarding Mr. Howell making a duplicate payment of £4,200 and that it should be repaid and another which related to the duplicate payment of a worker.[149]At the meeting Mr. Bradley asked the Claimants to confirm that no wrongdoing had taken place and to explain their position on the allegations. The Claimants said they did not wish to prejudice their position.[150]Mr. Howell did not understand why the Claimants had not provided an explanation for the transactions.[151]Following the meeting, Mr. Bradley emailed the Claimants with his summary of the meeting. Mr. Bradley noted that the Claimants had refused to directly answer the four questions, that they would not be provided with access to the Respondent’s system and that the Respondent had set out the questions and evidence in good time.[152]Within the email he also said: “I instead attempted to ask you to plainly to confirm a statement that no wilful wrongdoing had occurred, or that the evidential detail (disclosed to you) showing the monies diverted to your accounts was in fact an error or to deny the allegations. You both refused to answer this stating that an answer could prejudice your position. This was a disappointing response noting that you would clearly know whether or not you had wilfully, fraudulently drawn down these funds and in any event had already had enough time this week to seek legal counsel. It is noted that you neither admitted or denied this allegation”.[153]The email goes on to make reference to the Respondent being concerned by comments made by the Claimants and that its lawyers will be writing to the Claimants.[154]The email closed by saying the Respondent would continue its investigation and seek to conclude it in the coming days and encouraging the Claimants to participate and answer the allegations by 13 January 2022.[155]On 11 January 2022 Mr. Hewitt left Mr. Zayik an audio message that said: “Hey Vlad, I'm not sure if you're in a meeting or not. But Ali said that, you know, you're going to go to a couple of places and, you know, find out about the security and stuff like that. You don't need to do that anymore. You probably best stay in at arm's length. Don't get caught up in it .Especially with Antonio, you know, what's going to happen to him you don't want him to then you know, use you as a target or whatever, you know, obviously, he's got to be having going full bore at us. So, yeah, just stay away. Don't Don't even mention about security and all that stuff, mate. You just do your facilities and, and crack on with it, and then we'll help you with that. See me bye bye.[156]On 12 January 2022 Mr. Zayik messaged Mr. Hewitt stating he was going to become offensive towards him [Mr. Correa] in relation to character defamation and misleading. On 13 January 2022 Mr. Zayik messaged Mr. Howell saying: “Antonio is silently getting ready to become as prejudice as he can, we had enemies in common and he is now ganging up against me I have made up my mind now, until now I was only responding to his nones now he will feel the taste of sitting on the other side of the table – harassment and character defamation”.[157]On 12 January 2022 the Respondent’s solicitors wrote to the Claimants with a pre-action letter warning the Claimant’s about false and potential defamatory statements being made about Mr. Howell and Mr. Hewitt.[158]The Claimants emailed Mr. Bradley on 13 January 2022. It was a short email and noted that at the meeting: “We all agreed that Volodymyr is under heavy substance and causing significant damage, to which Colin added that he is an ex employee and there isn’t much we can do about him. Antonio had an argument specifically on 7th of September as a result of Directors transferring £190,000 out of the Assist Retail bank account to Assist Services Group on payday, which resulted in delays of wages/payments to guards.”[159]On 13 January 2022 Mr. Zayik messaged Mr. Howell saying: ‘Needless to say I was a driving engine behind the process you have orchestrated against Antonio, I have supported you significantly Now that I face a lot of cost with legal fees etc, and my last payment received from Assist was back in Oct, I need to ask you for figure of 4.5 k per months (that was agreed) to be paid for Nov, Dec, and pls include Jan so I can at least brake even (leave alone making any money for now) I will face a lot of expenses in coming weeks Antonio will get criminal record for sure, as I can’t suffer fools gladly”. He also messaged Mr. Hewitt regarding payments of £13.5k for November, December and January.[160]Mr. Bradley emailed the Claimants again on 14 January 2022 asking them to forward any response. Ms. Suurkivi replied later that day. She repeated her concerns about Mr. Zayik’s behaviour and him defaming Mr. Correa. She mentioned events on 7 September 2021 and commented on the Respondent's request for a return of laptops.[161]She confirmed they would not make any further comment on the allegations in the absence of access to the systems and emails and were seeking legal advice. She also said: “We provided evidence of £8k as part of the meeting, which already showed Colin’s reconciliation numbers being overinflated by 100%. We are unable to provide further information without bank statements, humanity access with guards/clients hours and access to sage”.[162]Mr. Bradley passed the email to Mr. Howell. Mr. Howell considered that as there was no further information forthcoming he had no choice but to dismiss the Claimants.[163]On 15 January 2022 Mr. Hewitt messaged Ms. Zayik stating: “Evelin sent an email yesterday saying that you cant be trusted as you have substance abuse”. Mr. Zayik replied: “Of course, next thing you know, - I’m criminal and from white European will go to black Brazilian”.[164]On 17 January 2022 Mr. Zayik left an audio message for Mr. Hewitt regarding payment and referenced a £4,500 consultancy fee month by month.[165]On 17 January 2022 Mr. Bradley wrote to the Claimants confirming that they had been dismissed with immediate effect for gross misconduct, and that fuller reasons would be provided.[166]On 18 January 2022 Mr. Howell emailed a person at Measure Group asking for some information about payments and invoices and about arrangements related to Elie Saab. A response was sent on 21 January 2022 in which the responder provided some information about workers in relation to specific events and that Ms. Suurkivi had confirmed the hours worked. He also said: “Elie Saab - Assist should be invoicing Measure at £14 per hour + VAT. This has only been in place few months as it’s a new contract. I am aware that Evelin netted off the balance against the self-employed hours last month to reduce the cash movement between the companies, and you would need to ask her for the details. We invoice Elie Saab direct, however we have not done any work for them in April. Regarding November payments, I will also have to speak to Evelin as we don’t understand the breakdown of sites, guards and hours as they worked for Assist. I know this was a temporary measure to support your self-employed payments until some of your clients increase their rates from January 22.”[167]On 20, 21 and 22 January 2022 there were further letters exchanged between the parties’ solicitors regarding claims of defamation, breach of GDPR and misuse of private information.[168]On 22 January 2022 Ms. Suurkivi wrote saying they had not heard back following Mr. Bradley’s letter of 17 January. She disputed Mr. Bradley’s assertion that the Claimants had not answered the questions posed at the meeting. She reiterated that £8,159.70 of the alleged £16,672.90 shortfall was due to payment errors which had been corrected, and they needed access to the Respondent’s systems to answer the remainder of the issues.[169]Mr. Howell wrote to the Claimants on 24 January 2022 and within the letter he set out the reasons why he had decided to dismiss the Claimants. The letter runs to 5 pages. It set out the four allegations against the Claimants, as below: 1. You have fraudulently inflated charges from limited company contractors for work undertaken by security personal by conspiracy with VLA Connect Ltd; 2. You have been paid by VLA Connect Ltd a share of those inflated charges amounting to at least £16,672.9 0; 3. You have continued to inflate limited company charges through a conspiracy with a second entity Measure Group and have benefited fraudulently in the same way; 4. You have been seeking to unlawfully divert contracts from the Company to VLA Connect and Rossi Security for personal gain.[170]The letter sets out Mr. Howell’s view of the disciplinary process and within it says: “You stated : “We provided evidence of £8k as part of the meeting , which already showed Colin’s reconciliation numbers being overinflated by 100%. We are unable to provide further information without bank statements, humanity access with guards/clients hours and access to sae (detailed on the statement)” The evidence you refer to in your written statement relates to payments made by the company to VLA and are not relevant to the allegations that you dishonestly procured inflated invoices from VLA and then split the gain with VLA as detailed in the evidence from the bank statements.”[171]Mr. Howell’s findings are very brief, and are set out on the last page, as below. “Allegations 1- 3 On the balance of probabilities , I have found that these matters are proven and constitute acts of gross misconduct. In the bank statements, I can clearly see that the sums drawn down in order to pay staff are in excess of the sums actually paid to these individuals and I can also see that sums equivalent to the excess are then paid into your bank account. You offered no explanation about any of the transfers discussed and stated to me at our meeting that answering these questions could get you and others in to more trouble. I construed this as an admission. Allegation 4 The company has found evidence that you have tried to solicit their clients and that assignments have been diverted to your own company Measure Group. These clients include both Landmark and Dior. Therefore, I have found after consideration that you have committed several acts of gross misconduct causing the company significant harm. As a result of your actions the Company has totally lost its confidence in you. You are therefore summarily dismissed from Assist Retail Limited as from the 17th January 2022, and as such you are not entitled to notice or pay in lieu of notice.”[172]It is important to note that in oral evidence, Mr. Howell accepted that at the disciplinary hearing there was no discussion regarding allegation 4 generally, or in regard to diversion of contracts from Elie Saab to Measure Group. He also said there was no physical evidence about this allegation, but that he could see some diversion.[173]In cross examination Ms. Suurkivi said that Mr. Howell was aware of work being undertaken by Assist workers via Measure Group from around December 2021 as he approved the payroll request.[174]Measure Group had been established as part of the Claimant’s intended exit strategy, although the Claimants were not directors of the company.[175]On 24 January 2022 Mr. Zayik and Mr. Hewitt exchanged messages about payment and Mr. Hewitt said he had spoken to Mr. Howell who intended to settle payment.[176]On 31 January 2022 Ms. Suurkivi emailed Mr. Howell and Mr. Bradley appealing the decision to dismiss them and providing comments in red font within the dismissal letter. The key points made by the Claimants were that they had not refused to answer the questions but that they needed more time and access to company systems to do so, that £16,000 of profit from the Respondent was not missing and that Landmark remained a client of Assist Security Ltd and Dior a client of Assist Security Retail Ltd.[177]An important part of the appeal is set out in full below: “Your comment doesn’t make any sense. Colin is aware of these payments to VLA and Measure. He even said at the meeting that he agrees that no subcontractor would do it for free. VLA is a subcontractor. Very cheap subcontractor, as going to market subcontractors charge between £14-16ph. Colin should know this as Assist Security has been offering subcontractors £13-16ph since August21 (at least). Andy offered Assist Retail subcontractor work for £16ph in September21. £12 is not an overinflation as its below market average !!! Shouldn’t you also hold us responsible for savings to the business? Eg. If these self-employed staff were employees, how much would they have costs, at least £10.85-11 PAYE? If we used another subcontractor, how much would it have costs - £13014ph? If a self-employed guard set up one man LTD company, what would be his rate - £12-13ph? Did the company lose money from this temporary set up ?Dud this set-up enable Assist Retail to use selfemployed guards as a temporary solution to guarantee client satisfaction as a number of clients were due to increase their rates from early 2022? Did this set up allow long-term experienced workers to continue covering shifts for Assist? Did this set-up cover Assist Retail for significant staff shortages during September- December as a result of covid break-out, staff shortage as a result of BREXIT? How much did the company save from this set-up? Colin said “Certainly Makes Sense”. Did the company lose any clients during this period? Were there any client complaints during this period? Did Colin ask how we were managing after Volodymyr “left” and we raised mental health concerns over Volodymyr?...”[178]On 1 February 2022 a letter was sent from Carter Lemon Camerons LLP on behalf of the Claimants to the Respondent, in short, it set out that they had advised the Claimants that they have the following claims: unfair dismissal, wrongful dismissal, unlawful deduction from wages, discrimination, failure to provide written particulars of employment and victimisation, and that the Claimants had attempted to explain that no charges had been inflated.[179]Dr. Mike McDonagh was appointed to conduct the appeal. On 9 February 2022 Mr. Bradley emailed the Claimants acknowledging the appeal. In his email he said the appeal was not well structured and asked the Claimants to reply to three questions: what they considered to have been breached, what alternative sanctions they thought should have been taken and what remedy they were seeking.[180]On 18 February 2022 Mr. Bradley emailed the Claimants informing them that an appeal hearing would take place on 25 February 2022.[181]It is not clear what documents Dr. McDonagh had reviewed in advance of the appeal hearing. Dr. McDonagh had seen Mr. Howell’s spreadsheet and the bank statements, but he had no clear recollection regarding any other documents.[182]Prior to the appeal hearing Dr. McDonagh spoke with Mr. Howell and Mr. Bradley. He did not take any notes and did not tell the Claimants that he had spoken with them.[183]The appeal hearing took place on 25 February 2022. Dr. McDonagh chaired the appeal and a note taker, David Fisher, also attended in addition to the Claimants. Prior to the appeal hearing, earlier on 25 February 2022 Dr. McDonagh met with Mr. Bradley.[184]The notes of the meeting run to 14 pages. A number of matters were discussed at the appeal hearing.[185]At the appeal hearing the Claimants said Mr. Howell was aware of commission payments, that they had shown him text messages at the disciplinary meeting regarding payment back to the Respondent of £3,900, that there was a sham and that Mr. Correa had been replaced before the suspension.[186]Dr. McDonagh asked the Claimants if they had explained the transactions to Mr. Bradley at the disciplinary hearing and the Claimants responded that because the accusation of fraud was so serious they took legal advice and asked for information but that they had provided two pieces of information and a statement at the disciplinary hearing. From the notes of the meeting it appears that Ms. Suurkivi attempted to show Dr. McDonagh some emails in relation to the allegation of fraudulently inflating charges and explain their view of the operation of the Dior staffing situation and that Mr. Howell was aware of the situation. Ms. Suurkivi said VLA Connect Ltd was paid £12-£12.50 and that Mr. Howell was aware of this. They explained that they felt they could not trust Mr. Bradley and he was not independent. Ms. Suurkivi said she had a cleaning company but that her bank account had been closed so VLA Connect Ltd invoiced the Respondent for her cleaning work.[187]From the notes of the appeal hearing the meeting became difficult in terms of following matters and voices were raised.[188]Dr. McDonagh suggested that the Claimants put in a written submission. It does not appear that Dr. McDonagh had seen the Claimants written appeal at the time of the appeal hearing. At the close of the appeal hearing Dr. McDonagh said he was going to speak with Mr. Bradley, carry on the investigation and let them have a copy of his findings.[189]Dr. McDonagh spoke with Mr. Howell and Mr. Bradley after the hearing, but the detail of the discussion is not known.[190]On 28 February 2022, the Monday following the appeal hearing on the Friday, Dr. McDonagh emailed the Claimants his appeal outcome letter. The appeal outcome letter was just over one page long. The letter says he has spoken to Mr. Howell and Mr. Bradley. The letter says the Claimants would not make a statement admitting or denying the allegations during the initial disciplinary meeting and that they failed to provide an explanation for the transfer of monies and this was the evidence used by Mr. Howell when deciding to dismiss the Claimants. Dr. McDonagh said he was upholding the initial findings and their dismissal stood. Dr. McDonagh did not consider the Claimants had made a reasonable attempt to explain the payments from VLA Connect Ltd to them and that there was no coherent explanation for the transactions.[191]The appeal outcome letter does not deal with allegation 4 at all, although Dr. McDonagh comments in his witness statement that the considered there had been a diversion of business away from the Respondent to Measure Group in relation to Elie Saab.[192]Dr. McDonagh was not aware that Mr. Howell had made all payments to VLA from 7 September 2021 onwards.[193]In February and March 2022 Mr. Zayik and Mr. Howell exchanged messages about payments and Mr. Howell referenced a retainer. The Tribunal find that Mr. Zayik was sent a payment for January and February 2022.[194]The last messages between Mr. Zayik and Mr. Hewitt were on 24 March 2022, which related to Mr. Hewitt offering to help Mr. Zayik find work.[195]The last message between from Mr. Howell to Mr. Zayik was on 7 April 2022 when Mr. Howell messaged Mr. Zayik stating: ‘I know Andy is trying to get hold of you to go through a witness statement so we can prosecute our friends”.[196]Within the Bundle there are references to Mr. Correa being in prison. In oral evidence, without being put a question on the matter, Mr. Hewitt referred to Mr. Correa being in prison in Africa. Mr. Correa later confirmed, that is accepted, that he was held but later released without charge. This was entirely unrelated to the Respondent.[197]Throughout the evidence, both oral and documentary, the Claimants often referred to the Respondent as their own business, and referenced the years of hard work they had put into it. As set out above, Sursec was sold following significant financial problems. The Tribunal consider this would have been a difficult time for the Claimants, and that transitioning to be employees of the Respondent may have been challenging, but that the Claimants do not appear to recognise the different role that they held as employees following the TUPE transfer. Findings of fact regarding knowledge of Dior[198]The Claimants say that a condition of the retender was that Dior would not allow any self-employed security officers at their sites. This is referenced by the Claimants as set out below. Ms. Suurkivi’s witness statement says: “33.Volodymyr Zayik, our operations manager, suggested that we could work around this issue by hiring self-employed officers through his company, VLA Connect ltd. He proposed a lower rate than other subcontractors to ensure we would choose him over others as he knew that cost was our deciding factor. By doing this, we saved the Respondent money, this also enabled us to work around the self-employment issue; Antonio agreed to a £12ph rate. (p 594). It can be evidenced on pages 346-348 that our other sub-contractor charging us £12.50 and £13.00. The group was also paying their sub- contractors £12.50-£13.00 (p 460). We negotiated a lower rate, consciously about fair trading practices, which saved money to the business. Our alternative options were to pay the selfemployed via payroll, which would have cost a lot more or use another sub-contractor for £13-£14. 34) This was meant to be a temporary solution until the end of 2021. This is because we could not offer PAYE rates that were meeting officers expectations. However, we were talking to the client about the need to increase the charge rates from January 2022 not to lose good officers. (p. 700; 848 35) Colin Howell was aware of this arrangement and even said "Certainly makes sense, especially as a short-term fix". Yet he was pretending that he was unaware of this. (p700).”[199]The document Ms. Suurkivi references at page 594 is noted above, it is a text message from Mr. Correa to Mr. Zayik on 6 September 2021 relating to four named individuals.[200]The documents she refences at pages 346-348 are invoices from another company, Main Security Ltd to the Respondent, for work that appears to be invoiced for two people at £13 and £12.50 per hour.[201]In view of the contemporaneous documents, we do not consider what is said at paragraph 34 of Ms. Suurkivi’s witness statement to be true or correct. The documents referenced above note that at the end of July 2021 Mr. Correa was looking for assistance with employment documents from Ms. Isom-Leonard and the pay rise referenced in the contemporaneous emails is from £10 to £10.85, to be put in place from September 2021.[202]The document at page 460 is a spreadsheet showing a range of rates and payments. We do not consider this assists in relation to determining Mr. Howell’s knowledge in relation to Dior matters.[203]We have not been directed to any documentation regarding the arrangement between VLA Connect Ltd and the Respondent regarding invoicing for and payment to guards based at Dior.[204]Mr. Howell’s evidence is that “we have identified that this was not a requirement of Dior at all. We have since moved all these workers back to Assist and they are providing their services as contractors in the same way as previously with no issue being raised by Dior.”[205]We have not been directed to any independent documentation relating to this or of any condition by Dior in the Bundle.[206]Mr. Howell’s evidence is that he knew Dior staff were being paid from Mr. Zayik’s company, VLA Connect Ltd, as a temporary solution but that he did not know that VLA Connect Ltd were charging the Respondent an uplift on hourly rates for this, and that he would not have agreed to this. He further states that, had it been necessary, staff could have been engaged via one of his companies at no additional cost.[207]We have further kept in mind that although VLA Connect Ltd was a company owned by Mr. Zayik, and at this time he was employed by the Respondent.[208]For completeness, we note that Mr. Zayik only briefly mentions the Dior tender, and that he wasn’t involved in the formal meetings or paperwork. At paragraph 50 of his statement he says: “Colin Howell was aware that commission and self-employed officer’s payments were being made to VLA Connect, but he came up with an idea of pretending that he didn’t know, so he could accuse them of wrongdoing. Colin Howell persuaded me to give them the VLA Bank Statements so they could orchestrate the fraudulent plan against Antonio Correa and Evelin Suurkivi, as documented in the bundle (page 330). However, they never told me that they would share these with them.”[209]We have considered all the evidence, in particular the contemporaneous emails set out in the main body of the finding of facts, which show Ms. Suurkivi and Mr. Correa telling Mr. Howell that the normal rate for PAYE was £10, moving to £10.85 from September 2021, and £12 for supervisors. In none of the email chains, noting that some deal with queries and concerns regarding low profit, do either Ms. Suurkivi or Mr. Correa mention the uplift being added to staff hourly pay rates as a cost incurred for VLA Connect Ltd making the payments.[210]On balance, taking all the evidence, witness and documentary, in to account, we find that Mr. Howell was aware that VLA Connect Ltd was facilitating payment to workers based at Dior as a temporary measure but that he was not aware of, and did not authorise, any uplift payments to VLA Connect Ltd. Review of payments in VLA Connect Ltd bank statements[211]The bank statements for Mr. Zayik’s company, VLA Connect Limited, for the three months of September to November 2021 were provided to Mr. Howell by Mr. Zayik in November 2021. Mr. Howell provided a copy of the statements to the Claimants with the suspension letter on 5 January 2022.[212]Set out below is the Tribunal’s factual summary of payments to VLA Connect Limited and out to the Claimants, based on the evidence provided. Where appropriate we have sought to note when any explanation about a payment was given by the Claimants.[213]It is important to emphasize that this was a challenging task due to the way that evidence was provided. In particular, neither of the Claimants set out in their witness statement what any payment to them from VLA Connect Ltd for the period of the bank statements was for. Mr. Sonaike attempted to deal with this in supplemental oral questioning.[214]The Tribunal could not locate a payment out to the three last workers listed in Ms. Suurkivi’s 7 September 2021 spreadsheet. 1 September 2021[215]A payment of £2,772.00 was made by the Respondent to VLA Connect Ltd. It is not clear what this payment was for.[216]On the same day, £1,600.00 was transferred out from VLA Connect Ltd to Mr. Correa and £710 to Ms. Suurkivi, both with the transaction reference ‘Office’. In response to questioning at the final hearing, Mr. Correa said that the money paid to him was a rental payment from Mr. Zayik for use of a flat that he and Ms. Suurkivi owned and that Mr. Zayik stayed there when they lived in Portugal. Also at the final hearing, Ms. Suurkivi said that Mr. Zayik had been paying £1,600 rent per month and the additional amount paid to her was for arrears. She said that the transaction reference was incorrect. The difference between £2,772.00 minus £1,600 and £710 is £462. On Mr. Howell’s spreadsheet he calculates VAT on £2,772.00 as being £462.[217]The Tribunal do not consider this to be a clear explanation.[218]This does not appear to have been explained by the Claimants prior to the final hearing.[219]The Tribunal are not clear why, if Mr. Zayik was paying the Claimants rent monies for use of a personal flat, this would be paid from VLA Connect Ltd or why the reference says office. The Tribunal is also unclear on why Mr. Correa was paid a monthly rent sum and Ms. Suurkivi was paid arrears.[220]The Tribunal appreciate the Claimants may have been concerned by the references to the word fraud. However, if this was a payment for rent the Tribunal considers that there would be no need to access the Respondent’s systems and the Claimants could have explained the payments to them, the first on Mr. Howell’s spreadsheet at the disciplinary or appeal hearing, or in writing before this final hearing. 6 September 2021[221]A payment of £2,930.71 was made by the Respondent to VLA Connect Ltd. It is not clear what this payment is for.[222]On the same day payments of £634.00 and £754.00 were made to Mr. Correa and Ms. Suurkivi respectively, both with a transaction reference ‘August’. In cross-examination at the final hearing, Mr. Correa said that this was a ‘reward’ for securing a contract, and Ms. Suurkivi called this commission for introducing a residential client to VLA Connect Ltd, unrelated to the Respondent.[223]The Tribunal notes that this explanation does not appear to have been provided prior to the final hearing. The Tribunal considers that if these payments were related to a non-Respondent contract the Claimants could have explained these payments to them without needing to access the Respondent’s systems. 8 September 2021[224]A payment of £3,345.00 was made by the Respondent to VLA Connect Ltd. It is not clear what this payment is for.[225]On the same day there is a payment of £2,787.50 from VLA Connect Ltd to a CM. The difference is £557.50, which Mr. Howell’s spreadsheet calculates as the sum for VAT. On Ms. Suurkivi’s pay document, the first entry relates to CM and shows the total due to him as £2,787.50. 9 September 2021[226]A payment of £4,200.00 was made by the Respondent to VLA Connect Ltd. A corresponding payment of the same amount was returned to the Respondent on 10 September 2022. The Claimants raised this duplicate payment during the internal process.[227]On 9 September 2021 payments were made to three workers, EK, GS and DG. The bank statements show that VLA Connect Ltd paid the workers the following: EK £1,118.00, GS £660.00 and DG £1,369.50.[228]In the spreadsheet provided by Ms. Suurkivi to Mr. Howell on 7 September 2022 she sets out the following payment breakdown: EK - 99.5 and 8.5 hours, £12.00 rate, £1,296.00 total, £259.20 VAT, £1,555.20 total payable. GS – 60 hours, £12.00 rate, £720 total, £144.00 VAT, £864.00 total payable. DG – 124.5 and 12 hours, £12.70 rate, £1,733.55 total, £346.71 VAT, £2,080.26 total payable.[229]As can be seen from the bank statements, Mr. Howell’s reconciliation spreadsheet and the summary above, all three workers were paid less than the “total” on Ms. Suurkivi’s spreadsheet.[230]Using EK as an illustrative example, it says the total to him excluding VAT was £1,296.00 for 108 hours work. The actual sum paid to EK was £1,188.00. £1,296.00 - £1,188.00 = £108. 108 hours at £11.00 per hour equals £1,188.00. EK was paid for 108 hours at £11.00 per hour from VLA Connect Ltd.[231]In short, GS was paid £660 from VLA Connect Ltd for 60 hours work, giving an hourly rate of £11 and DG was paid £1,369.50 from VLA Connect Ltd for 136.5 hours. This gives an hourly rate of £10.03.[232]As set out above, the Claimant’s explanation is that Mr. Howell was aware of the arrangement with VLA Connect Ltd and that he was aware of the uplift. This explanation was not put forward at the disciplinary hearing, or in the Position Statement prepared for that hearing. It would have been possible to identify from Ms. Suurkivi’s own spreadsheet, the spreadsheet produced by Mr. Howell and the bank statements that the amounts paid to the workers were less than the amounts on Ms. Suurkivi’s spreadsheet and to explain what they considered to be the reason for the difference on that information, namely the uplifted pay rates. 10 September 2021[233]The Respondent made a payment to VLA Connect Ltd of £20,022.81 (which together with the £3,345 transferred on 8 September 2021 amounts to £23,367.81 referred to in Ms. Suurkivi’s spreadsheet dated 7 September as the total payable for all 13 workers listed in that spreadsheet).[234]On the same day VLA Connect Ltd made payments to 7 workers. Summarised below are the actual sums paid to the workers, and the “total” from Ms. Suurkivi’s spreadsheet. In the same way as the payments made on 9 September 2021, all workers actually received less than the total on the spreadsheet. 235. Worker Amount paid by VLA “Total” payable on Ms.Suurkivi’s spreadsheet ET £1,600.50£1,746.00 JR £1,585.50£1,812.00 EO £1,672.00£1,824.00 IS £2,013.00£2,184.00 HS £4220.50£4,587.50 WS £476.35 Not on spreadsheet AA £70 Not on spreadsheet[236]Also on 10 September 2021, VLA Connect Ltd made payments to Mr. Correa in the sum of £476.35 and Ms. Suurkivi in the sums £621.85, both with the transaction reference ‘August’.[237]No explanation was given by Mr. Correa for the sum received by him at the final hearing. In oral evidence Ms. Suurkivi said that this was commission from Mr Zayik for assistance in securing the contract with a client [R], unrelated to the Respondent’s business.[238]The Tribunal notes that this explanation does not appear to have been provided prior to the final hearing. The Tribunal considers that if these payments were related to a non-Respondent contract the Claimants could have explained these payments to them without needing to access the Respondent’s systems. 13 September 2021[239]On 13 September 2021 VLA Connect Ltd paid Mr. Correa £2,000.00. At the final hearing Mr. Correa said that he had asked Mr. Zayik for a short-term loan to cover some expenses associated with the refurbishment of his house in Portugal and there were some contemporaneous WhatsApp messages regarding this request.[240]The Tribunal was not directed to any evidence of repayment.[241]The Tribunal notes that this explanation does not appear to have been provided prior to the final hearing. The Tribunal considers that if this payment was related to a personal loan the First Claimants could have explained this payments to them without needing to access the Respondent’s systems. 27 September 2021[242]On 27 September 2021 VLA Connect Ltd paid Ms. Suurkivi £30, with a reference ‘taxi’. At the final hearing Ms. Suurkivi said this was a reimbursement for a taxi fare. There was corroboratory documentation in relation to this payment.[243]The Tribunal notes that this explanation does not appear to have been provided prior to the final hearing. The Tribunal considers that if this payment related to a taxi reimbursement, the Second Claimant could have explained this payment without needing to access the Respondent’s systems. 4 October 2021[244]On 4 October 2021 a payment of £2,240.11 was made from the Respondent to VLA Connect Ltd. It is not clear what this payment was for.[245]On 4 October VLA Connect Ltd made a payment of £502.25 referenced as ‘Extra’ to Mr. Correa and a payment of £622.25 referenced ‘Sept’ to Ms. Suurkivi.[246]At the final hearing Mr. Correa said that the payment to him was for use of his Range Rover and Ms. Suurkivi said that her payment was for the provision of office cleaning services to Assist Security offices through her company Surclean. Ms. Suurkivi said that her business bank account had been frozen for unrelated reasons and that Mr. Zayik was invoicing the Respondent on her behalf. The Tribunal was directed to an invoice from VLA Connect Ltd to the Respondent dated 4 October 2021 which references cleaning services. The Tribunal notes that the total payable on the invoice is £540.00, which is not the same amount.[247]The Tribunal notes that this explanation does not appear to have been provided prior to the final hearing, although the First Claimant’s witness statement does refer to Mr. Zayik using the Range Rover and contributing towards monthly installments. The Tribunal considers that if these payments related to use of Range Rover and cleaning services, that both Claimants could have explained such payments without needing to access the Respondent’s systems. 8 October 2021[248]On 8 October 2021 the Respondent made three payments to VLA Connect Ltd of £4,539.60, £4,186.80 and £5,032.80 (a total sum £13,759.20). It was not clear what these sums were for.[249]On the same day VLA Connect Ltd made a payment to Mr. Correa £2,223.00 labelled as ‘Wages’.[250]On 11 October 2021 VLA Connect Ltd made payments to 8 members of staff amounting to £8,285.23.[251]At the final hearing Mr Correa said that this payment to him was for him to then withdraw the sum as cash to pay a ‘kick-back’ to an employee of a client.[252]The Tribunal notes that in Mr. Sonaike’s written submissions he referred the Tribunal to a message between Mr. Zayik and the First Claimant said to evidence a payment to the First Claimant to pay over to Mr Zayik for private work. In the thread Mr. Zayik reminds the First Claimant to take £1,000 and a total figure of £2,222.00.The Tribunal notes that the message provides no indication of what this relates too.[253]The Tribunal notes that this explanation does not appear to have been provided prior to the final hearing. The Tribunal considers that if this payment related to a “kickback” the First Claimant was likely to have been able to have explained such a payment without needing to access the Respondent’s systems. 11 October 2021[254]The Respondent paid VLA Connect Ltd £540.00. It was not clear what this sum was for.[255]On the same day VLA Connect Ltd made a payment of £200, labelled ‘Sep’. In response to cross examination Ms. Suurkivi said that this payment was for wages for a Surclean employee.[256]It is noted, as set out above, that there is an invoice for the sum of £540 from VLA Connect Ltd to the Respondent. The Tribunal does not consider that the same invoice can relate to the payments to Ms. Suurkivi on both 4 October and 11 October. On balance, the Tribunal find that the sum of £540 paid to VLA Connect Ltd on 11 October 2021 is likely to relate to the above mentioned invoice of 4 October 2021, and the payment of £622.25 made on 4 October 2021 related to something else, that not being clear.[257]The Tribunal notes that this explanation does not appear to have been provided at the disciplinary hearing, but there was reference to cleaning work at the appeal hearing. The Tribunal considers that if this payment related to cleaning charges the Second Claimant should have been able to explain this without accessing the Respondent’s systems. 13 October 2021[258]On 13 October 2021 the Respondent paid VLA Connect Ltd £3,996.70. 14 October 2021[259]On 14 October 2021 the Respondent paid VLA Connect Ltd £3,959.70.[260]Contemporaneous messages between Ms. Suurkivi and Mr. Zayik indicate that the second payment was a duplicate mistake and Ms. Suurkvi asked Mr. Zayik to repay the sum. Ms. Suurkivi informed Mr. Howell of the error at the time. The Claimants explained this during the disciplinary process. 15 October 2021[261]On 15 October 2021 VLA Connect Ltd made a payment of £3,179.75 to HS. 18 October 2021[262]On 18 October 2021 VLA Connect Ltd paid the First Claimant £100.00. At the final hearing the First Claimant and Mr. Zayik said the payment relate to borrowing a car. A message from Mr. Zayik to the First Claimant on 16 October 2021 states “BTW got your £100 back from the car rent”.[263]The Tribunal notes that this explanation does not appear to have been provided prior to the final hearing, and it not clear if this is the same Range Rover as referenced above. The Tribunal considers that if this payment related to car related matters, the First Claimant should have been able to explain this without accessing the Respondent’s systems. 3 November 2021[264]On 3 November 2021 the Respondent paid £2,650.80 to VLA Connect Ltd.[265]On the same day VLA Connect Ltd made a payment of £1,000.00 to the First Claimant. 4 November 2021[266]VLA Connect Ltd made a payment of £1,000 to the First Claimant.[267]The Tribunal does not consider these two payments were explained at the final hearing.[268]In submissions, Mr. Soniake said these payments were to enable the First Claimant to withdraw cash to make commission payments to client management. 5 November 2021[269]On 5 November 2021 the Respondent made four payments to VLA Connect Ltd of £5,106.70, £7,642.00; £1,0240.20 and £4,733.00. It is not clear what these payments were for.[270]On 5 November 2021 VLA Connect Ltd paid the First Claimant £2,670.00.[271]The First Claimant gave inconsistent explanations for this payment.[272]At the final hearing, in re-examination, the First Claimant said that this money was to enable him to pay Mr. Soder for helping them during Covid. However, in response to cross-examination, the First Claimant said the payment to Mr. Soder was for his work covertly monitoring Mr. Zayik.[273]The Tribunal do not consider either explanation, particularly the second, to make sense.[274]Mr. Soder was previously employed by Assist Security and resigned on 4 September 2021. He did not leave on happy terms. If the First Claimant’s first explanation is correct, there does not seem to be any sensible reason why Mr. Soder could not be paid directly by the Respondent, if he was properly undertaking legitimate work for the Respondent. If the First Claimant’s second explanation is correct, it is the case that the First Claimant was using funds from the Respondent, paid to Mr. Zayik’s company and out to him, to covertly monitor Mr. Zayik. The Tribunal considers such an explanation to be bizarre.[275]The Tribunal were not directed to any evidence that an explanation for this payment had been given prior to the final hearing. If either explanation was correct, this payment could have been explained without access to the Respondent’s system. 8 November 2021[276]On 8 November 2021 the Respondent made two payments to VLA Connect Ltd of £3,708.00 and £1,893.00. It is not clear what these payments were for.[277]On 8 November 2021 VLA Connect Ltd made three payments to the Second Claimant of £949.20, £80.00 and £600.00. At the final hearing the Second Claimant explained the £80 was reimbursement from Mr. Zayik for some ski clothes she had bought for his son. She also said that the other payments related to a loan of £1500 from Mr. Zayik to the First Claimant. She referred to a message on 23 October 2021, that appears to be from the First Claimant to Mr. Zayik, which states: “Hermano do you have £1500 VAT money, still have to give you £2k… have to paid the guy to finish the planning for REDACTED but Evelin has not requested funds for the company”. “Let me know if you can land me and I will give you next week the £1.5k and the 2k month end”.[278]The Tribunal notes that in the messages the First Claimant refers to repaying £1.5k the next week, but the payments from VLA Connect Ltd were made to the Second Claimant, not the First Claimant and were made over two weeks after the request.[279]The Tribunal does not consider this to be a credible explanation.[280]The Tribunal were not directed to any evidence that an explanation for these payments had been given prior to the final hearing. If the explanations are correct, they could have been explained without access to the Respondent’s system.[281]The bank statements provided were dated up to 29 November but there were no further entries concerning any of the parties after 8th November. The Law Unfair dismissal
The Law
[282]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that she was dismissed by the Respondent under section 95, but in this case the Respondent admits that it dismissed the Claimants. 94.— The right.(1) An employee has the right not to be unfairly dismissed by his employer.(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).[283]Section 98 of the Employment Rights Act 1996 deals with the fairness of dismissal. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the Respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.[284]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with the substantial merits of the case. 98.— General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) In subsection (2)(a)— (a) “capability” , in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications” , in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.(4) [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. (6) [Subsection (4)]4[is]5 subject to— (a) [sections 98A to 107]6 of this Act, and (b) [sections 152, 153, 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992]7 (dismissal on ground of trade union membership or activities or in connection with industrial action).[285]In misconduct dismissal there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions of Burchell v British Home Stores Ltd IRLR 379 and Post Office v Foley 200 IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[286]In relation to the reason for dismissal, in Abernethy v Mott, Hay & Anderson [1974] ICR 323 it was held: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee".[287]Where a decision is made for more than one reason, the Tribunal is obliged to identify the principal reason. The Tribunal is not restricted to finding the reason is that relied upon by the employer, or that argued for the employee, the Tribunal can make its own determination on the reason for dismissal. Polkey[288]It was agreed with the parties at the start of the hearing that if it was determined that the Claimants had been unfairly dismissed, the Tribunal should consider whether any adjustment should be made to the compensation on the grounds that if a fair process had been followed by the Respondent in dealing with the Claimants’ cases, the Claimants might have been fairly dismissed.[289]Where a dismissal is unfair on procedural grounds, the Tribunal must also consider whether, by virtue of Polkey v AE Dayton Services [1987] IRLR 503, HL, there should be any reduction in compensation to reflect the chance that the claimant would still have been dismissed had fair procedures been followed.[290]The law in this respect is set down in the cases of Polkey v AE Dayton Services Ltd [1987] UKHL 8, Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604. Contributory Fault[291]It was also agreed with the parties that if the Claimant had been unfairly dismissed, the Tribunal would address the issue of contributory fault, which inevitably arises on the facts of this case.[292]The Tribunal may reduce the basic or compensatory awards for culpable conduct in the slightly different circumstances set out in sections 122(2) and 123(6) of the Employment Rights Act 1996. Section 122(2) provides as follows: “Where the Tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly.”[293]Section 123(6) then provides that: “Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” Wrongful dismissal[294]An employer is entitled to terminate an employee’s employment without notice if the employee is in fundamental breach of contract. This will be the case if the employee commits an act of gross misconduct. If the employee was not in fundamental breach of contract, the contract can only lawfully be terminated by the giving of notice in accordance with the contract or, if the contract so provided, by a payment in lieu of notice.[295]A claim of breach of contract must be presented within 3 months beginning with the effective date of termination (subject to any extension because of the effect of early conciliation) unless it was not reasonably practicable to do so, in which case it must be submitted within what the Tribunal considers to be a reasonable period thereafter. Direct race discrimination[296]Section 13 Equality Act 2010 states: 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.(6) If the protected characteristic is sex— (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work).(8) This section is subject to sections 17(6) and 18(7). Section 136 of the Equality Act 2010 states: 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to— (a) an employment tribunal; (b) the Asylum and Immigration Tribunal; (c) the Special Immigration Appeals Commission; (d) the First-tier Tribunal; (e) the Education Tribunal for Wales; (f) the First-tier Tribunal for Scotland Health and Education Chamber.[297]Under section 13(1) of the Equality Act 2010 read with section 9, direct discrimination takes place where a person treats the claimant less favourably because of race than that person treats or would treat others.[298]Under section 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[299]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the claimant was treated as they were. (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285).[300]Decisions are frequently reached for more than one reason. Provided the protected characteristic had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport [1999] IRLR 572, HL).[301]The case law recognises that very little discrimination today is overt or even deliberate. Witnesses can even be unconsciously prejudiced.[302]There are two stages to the burden of proof test as set out in section 136 of the Equality Act 2010. Stage 1: There must be primary facts from which the tribunal could decide – in the absence of any other explanation, that discrimination took place. The burden of proof is on the claimant (Ayodele v(1) Citylink Ltd(2) Napier [2018] IRLR 114, CA; Royal Mail Group Ltd v Efobi [2021] UKSC 22). This is sometimes referred to as proving a prima facie case. If this happens, the burden of proof shifts to the respondent. Stage 2: The respondent must then prove that it did not discriminate against the claimant.[303]In other words, where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act.[304]The burden of proof provisions requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board [2012] IRLR 870, SC.)[305]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. Once the burden of proof has shifted, it is then for the respondents to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.[306]The Court of Appeal in Madarassy, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.[307]A false explanation for the less favourable treatment added to a difference in treatment and a difference in sex can constitute the ‘something more’ required to shift the burden of proof. (The Solicitors Regulation Authority v Mitchell UKEAT/0497/12.)[308]In Glasgow City Council v Zafar 1998 ICR 120, HL, Lord BrowneWilkinson said that in the context of a discrimination claim ‘the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably”.’ He approved the words of Lord Morison, who delivered the judgment of the Court of Session, that ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances’. It follows that mere unreasonableness may not be enough to found an inference of discrimination. Unfair treatment itself is not discriminatory.[309]In Amnesty International v Ahmed UKEAT/0447/08/ZT the EAT stated, paragraph 36, “…the ultimate question – is – necessarily – what was the ground of the treatment complained of (or – if you prefer – the reason why it occurred)…”.[310]Evidence of discriminatory conduct and attitudes in an organization may be probative in deciding whether alleged discrimination occurred: Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425.[311]It is direct discrimination if an employer treats an employee less favourably because of their association with another person who has a protected characteristic. This does not apply to marriage and civil partnership or pregnancy and maternity. Discrimination by association can occur in various ways – for example, where the worker has a relationship with someone with a protected characteristic. The association with the other person need not be a permanent one.[312]The protected characteristic of the other person must be the reason for the treatment. Harassment[313]Section 26 of the Equality Act 2019 states:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are—• age;• disability;• gender reassignment;• race;• religion or belief;• sex;• sexual orientation.[314]Although harassment is similar to direct discrimination it covers actions “related to” a protected characteristic, which goes further than “because of”.[315]When considering whether a claimant’s dignity has been violated or an intimidating, hostile, degrading humiliating or offensive environment has been created, it must be kept in mind that it is not enough that the conduct was simply upsetting.[316]When considering effect it must be considered whether it was reasonable for the conduct to have had the effect taking in to account both a claimant’s perception and the overall circumstances. Unlawful deduction of wages[317]Section 13(1) of the Employment Rights Act 1996 (ERA) provides an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract or the worker has previously signified in writing his agreement or consent to the making of the deduction.[318]An employee has the right to complain to an Employment Tribunal of an unauthorised deduction from wages pursuant to section 23 ERA. The definition of “wages” in section 27 ERA includes holiday pay.[319]A claim about an unauthorised deduction from wages must be presented to an Employment Tribunal within three months beginning with the date of payment of the wages from which the deduction was made, with an extension for early conciliation if notification was made to ACAS within the primary time limit, unless it was not reasonably practicable to present it within that period and the Tribunal considers it was presented within a reasonable period after that. Failure to provide written particulars[320]In accordance with section 38 Employment Act 2002 where a Tribunal finds in favour of an employee in another complaint, and the Tribunal finds that the employer has failed to provide the employee with a written statement of employment particulars, the Tribunal must award the employee an additional two weeks’ pay, unless there are exceptional circumstances which would make that unjust or inequitable, and may, if it considers it just and equitable in all the circumstances, order the employer to pay an additional four weeks’ pay.
Conclusions
[321]Set out below are the Tribunal’s conclusions on each issue, having regard to the findings of fact (which were made on the evidence presented) and having applied the relevant law. In reaching conclusions the Tribunal considered the parties’ submissions in full, but they are not repeated here.[322]The conclusions are unanimous. Ordinary Unfair Dismissal (First Claimant and Second Claimant)[323]The Respondent accepted that the Claimants had been dismissed, and asserts that the reason for dismissal was misconduct.[324]The Claimants submit that their dismissals were predetermined, and that the dismissals were an act of race discrimination.[325]The first issue for determination was: what was the reason for dismissal?[326]The Tribunal considered all of the findings of fact.[327]Mr. Howell was the decision maker. There is some evidence to suggest there was a plan to remove the Claimants following Mr. Zayik informing Mr. Howell that the Claimants, and himself, had fraudulently obtained the Respondent’s money.[328]However, the Tribunal find that the reason for the Claimants dismissal, at the time of dismissal, was that Mr. Howell believed the Claimants had uplifted the rate of pay for Dior based staff and kept parts of the uplifted rate. We also consider that the Claimants not providing clear explanations for the sums of money paid to them from VLA Connect Ltd also caused Mr. Howell to believe that money was being taken from the Respondent and retained by the Claimants. The Tribunal also consider that Mr. Howell was concerned that the Claimants were planning on leaving the Respondent and would seek to take business with them.[329]The Tribunal determined that the Claimants were dismissed because of their conduct.[330]It was concluded that conduct was the reason for dismissal, and this was a potentially fair reason under section 98(2)(b) of the Employment Rights Act 1996.[331]As the Respondent has shown a potentially fair reason for dismissing the Claimants, the next legal issue for consideration is that set out in section 98(4) of the Employment Rights Act 1996. This provision always bears repeating: “(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depended on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with the equity and the substantial merits of the case.”[332]The test of fairness is tied into the reason for dismissal, which the Tribunal found to be conduct. It also considered the size and resources of the Respondent. In this case the Respondent is a small employer, which has no internal HR department within the Respondent or Assist Group. A further key point is that the test looks at whether the employer acted reasonably or unreasonably. This effectively imports a “band of reasonable responses” test. The question is whether this employer acted reasonably given the reason for dismissal. It is not for the Tribunal to substitute its view on what the Respondent should or should not have done.[333]When considering fairness in conduct dismissals the correct approach is set out in British Homes Stores v Burchell [1980] ICR 3030 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23. The Tribunal must also have regard to the ACAS Code of Practice on Discipline and Grievance Procedures 2015 (the Code).[334]The Tribunal has considered each stage of the Burchell test as set out below. Did the Respondent have a genuine belief the Claimants had committed misconduct and were there reasonable grounds for that belief?[335]As set out in the findings of fact above, the Respondent set out four allegations against the Claimants. The Tribunal has considered each allegation separately.[336]Allegation 1 stated: You have fraudulently inflated charges from limited company contractors for work undertaken by security personnel by conspiracy with VLA Connect Ltd.[337]The Tribunal concluded that the Respondent did have a genuine belief that the Claimants had committed misconduct based on reasonable grounds. Mr. Howell considered the information available to him, in particular his review of VLA Connect Ltd bank statements after being told by Mr. Zayik that fraud was being committed and assessment of the sums paid out to VLA Connect Ltd for Dior staff wages. At the point of dismissal no easily understandable explanation had been provided by the Claimants in relation to the uplifting of Dior rates. It is important to bear in mind that as a matter of fact it was found that Mr. Howell was aware of the arrangement to pay Dior based staff via VLA Connect Ltd but was not aware of, and did not agree to, VLA Connect Ltd receiving any uplifted rate.[338]Allegation 2 stated: You have been paid by VLA Connect Ltd a share of those inflated charges amounting to at least £16,672.90.[339]Allegation 2 is based on an allegation that the Claimants had been paid a share of inflated rates of at least £16,672.90[340]The Tribunal consider this was a poorly worded allegation.[341]It appears that Mr. Howell’s analysis looked at sums of approximately £23,000 relating to Dior staff payments but during the period of the bank statements there were payments from the Respondent in the region of £90,000.[342]Mr. Howell added up the sums paid out to the two Claimants in the period of the bank statements for VLA Connect Ltd that were provided to him by Mr. Zayik.[343]This sum does not appear to directly correlate to the sums paid in relation to wages for Dior staff, and Mr. Howell’s analysis was limited. The Tribunal notes that where there are concerns that payments are being uplifted, there could be a genuine concern that the amount of the uplift was retained by VLA Connect Ltd and distributed to the Claimants. The Tribunal accepted that Mr. Howell genuinely believed that there had been a distribution of sums resulting from uplifted rates to the Claimants by VLA Connect Ltd but Mr. Howell’s mathematical approach, together with the lack of clear explanations from the Claimants, the Tribunal cannot conclude that there was a genuine belief in the sum of at least £16,672.90.[344]Allegation 3 stated: You have continued to inflate limited company charges through a conspiracy with a second entity Measure Group and have benefited fraudulently in the same way.[345]On the evidence available, the Tribunal concluded that at the time of determining the Claimants should be dismissed the Respondent did not have a genuine and reasonable belief that the Claimants had inflated limited company charges through a conspiracy with a second entity Measure Group and have benefited fraudulently in the same way. It was not clear to the Tribunal what information Mr. Howell based this on. It is important to keep in mind that the Claimants were told that they had been dismissed on 17 January, and at that time were told fuller reasons would follow. It was not until after this date that further enquiries with Measure Group took place.[346]The Tribunal accept that Mr. Howell may have had suspicions that a similar arrangement was taking place with Measure, but on the evidence available cannot conclude that the Respondent had a genuine and reasonable belief in allegation 3.[347]Allegation 4 stated: You have been seeking to unlawfully divert contracts from the Company to VLA Connect and Rossi Security for personal gain.[348]For ease, the findings in relation to allegation 4, as set out in the letter providing the reasons for dismissal, are repeated here. “The company has found evidence that you have tried to solicit their clients and that assignments have been diverted to your own company Measure Group. These clients include both Landmark and Dior.”[349]Allegation 4 sets out the Respondent’s concern that the Claimants were seeking to divert contracts from the Respondent to VLA Connect Ltd and Rossi Security. The finding by Mr. Howell in relation to allegation 4 refers to diversion to Measure Group, there is no reference to VLA Connect or Rossi in relation to his findings regarding allegation 4.[350]The Tribunal notes that from autumn 2021 it was clear that the relationship between the Claimants and the Respondents had soured, and based on the findings of fact, the Tribunal concludes that the Claimants were seeking to leave the Respondent and take Respondent business elsewhere.[351]The Tribunal concludes that Mr. Howell, and therefore the Respondent, did have general concerns, based on the First Claimant meeting with Landmark and what he had been told by Mr. Zayik, including Whatsapp message chains, that the Claimants were seeking to leave and divert business.[352]However, at the point of dismissal, the contracts with Dior and Landmark had not been diverted to Measure Group, and remained contracts with the Respondent. It is not clear what information the Respondent based this finding on.[353]Accordingly, based on the evidence presented, the Tribunal concludes that at the point of dismissal the Respondent did not have a genuine and reasonable belief in allegation 4. Did the Respondent carry out a reasonable investigation?[354]The next requirement of the Burchell test is for the Tribunal to consider if the Respondent carried out a reasonable investigation. Again, this issue, being whether at the time the belief of misconduct was formed had the Respondent carried out a reasonable investigation, is a question of the band of reasonable responses.[355]The Respondent did not hold a separate investigation and disciplinary meeting. Mr. Howell acted as both the investigator and the decision maker.[356]The ACAS Code of Practice on Disciplinary and Grievance Procedures, at paragraph 5, under the heading “Establish the facts of each case” states: “5. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”[357]The Code itself gives an employer flexibility in how to approach an investigation. The extent and form of an investigation will vary depending on the facts of a case. The holding of an investigation meeting is not a mandatory requirement, but in many cases will be required. In other cases, the investigation will only involve an employer collating relevant evidence.[358]It is also noted that at paragraph 6 the Code states: “In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.”[359]This provision is often to ensure impartiality. In many cases a line manager may undertake the investigation. In this case, Mr. Howell was both the investigator and the decision maker. However, the Respondent is not a large organization, and in the circumstances of this case, in particular the information being provided to Mr. Howell from Mr. Zayik, the Tribunal did not consider that Mr. Howell acting in both capacities was in itself fatally unfair, particularly in relation to allegations 1 and 2 which were in essence paper based.[360]The Tribunal has considered whether the investigation in relation to each separate allegation was reasonable.[361]In relation to allegations 1 and 2, and noting the documentation, namely the bank statements, Mr. Howell’s analysis and the payment spreadsheet provided by the Second Claimant on 7 September 2021, the Tribunal considered that an adequate and reasonable investigation had taken place. The Tribunal did not consider that a separate investigation meeting was necessary in this respect as, based on the documents available, there was enough factual information to move forward to a disciplinary hearing without a separate investigation meeting first taking place. Further, the Claimants could have provided further information/responses to allegation 1 and 2 based on the documents provided and the general knowledge they had about pay arrangements for Dior based staff.[362]However, in relation to allegations 3 and 4, it is not at all clear on the evidence provided what investigation was undertaken and what information Mr. Howell relied upon in relation to these allegations prior to Mr. Howell’s making his decision that the Claimants should be dismissed. As set out, we consider the Claimants could reasonably have been confused about the basis of allegations 3 and 4, and that further specificity and information was needed for an adequate investigation to take place in order for the Claimants to answer the allegations made against them.[363]The Tribunal concludes that in relation to allegations 3 and 4 the Respondent did not carry out a reasonable investigation. Did the Respondent otherwise act in a procedurally fair manner?[364]Again, the ACAS Code is relevant in considering this question. The key points are: - That an employer acting fairly will give sufficient details of the allegations and the evidence being considered in enough time before the disciplinary hearing; - The employee is permitted to be accompanied by a fellow worker or trade union representative; - The employer must consider whether or not disciplinary or any other action is justified and inform the employee in writing; - The employee has a fair chance to set out their case at a disciplinary hearing; - That the employee is offered the right of appeal; - Whether the dismissal process was a sham/predetermined.[365]The Claimants were given six days’ notice of the allegations that were to be considered at the disciplinary hearing. Considering time alone, the Tribunal concluded that six days was an adequate period. However, as noted above, the Tribunal did not consider that sufficient details of allegations 3 and 4 and the evidence being considered was provided to the Claimants.[366]The Claimants were informed of and given the right to be accompanied at the disciplinary hearing.[367]It is noted that the Claimants did set out their written position.[368]The Tribunal concluded that in relation to allegations 1 and 2 the Claimants had a fair chance to set their case out at the disciplinary hearing. At the hearing they could have explained their position and view on the uplifted rate of payment for Dior staff and the payments received by them from VLA Connect Ltd.[369]The Tribunal considered that the lack of clarity regarding allegations 3 and 4 meant that the Claimants did not have a fair chance to set out their position at a disciplinary hearing.[370]An appeal hearing did take place. Dr. McDonagh could not recall whether he saw the Claimants’ comments or documents beforehand, only that he spoke with Mr. Howell and Mr. Bradley. At the appeal hearing some partial and limited explanations were provided by the Claimants, and Dr. McDonagh said he would undertake some further investigation. There was no evidence that Dr. McDonagh undertook any further investigation and he confirmed the Claimants’ dismissal the next working day. The Tribunal do not consider that the appeal cured any procedural defects.[371]The Tribunal has considered all of the facts set out above in considering whether the disciplinary procedure was a sham and whether the dismissals were predetermined.[372]It is of significance in this case that there was a significant fall out between the parties in September 2021. It is clear from the documents that the Claimants wished to leave the Respondent and that, as demonstrated by the language the Claimants used during the final hearing, the Claimants considered the Respondent’s clients to be their clients and the business to be theirs. By the time of dismissal, Mr. Howell was aware that the Claimants wished to leave the Respondent and had seen WhatsApp messages that the Claimants had sent regarding their plans. The Tribunal consider that the Respondent, via Mr. Howell, Mr. Hewitt and Mr. Zayik, sought to put a plan in place to arrange for the exit of the Claimants and protection the Respondent’s business.[373]On balance, although the Tribunal consider Mr. Howell did have genuine and reasonable belief that the Claimants had committed the misconduct in allegations 1 and 2, the Tribunal considered that steps taken by Mr. Howell, Mr. Hewitt and Mr. Zayik evidence a conclusion that the only outcome of the disciplinary process was the dismissal of the Claimants: Mr. Howell had predetermined that there had been fraudulent actions by the Claimants and they were seeking to leave the Respondent, with Respondent client business.[374]Accordingly, the Tribunal concludes that there was no fair dismissal procedure in relation to any of the four allegations due to the predetermination.[375]As there was no fair process, it was not within the range of reasonable responses to dismiss the Claimants. The Tribunal reminded itself that it was not to substitute its own view, but drew this conclusion in view of the fact the decision to dismiss was procedurally unfair.[376]The Claimants’ complaints of unfair dismissal succeed and are upheld. Polkey[377]The Tribunal’s conclusions on Polkey are set out below.[378]Mr. Sellwood invited the Tribunal to make a finding that a 100% deduction should be made.[379]Mr. Sonaike submitted there was no proper basis for a Polkey deduction.[380]In undertaking this exercise the Tribunal is not assessing what it would have done, but is assessing what this employer would or might have done. The Tribunal must assess the actions of the employer before them, on the assumption that this employer would have acted fairly if it had not done so before.[381]The Tribunal concluded that, had a different process been undertaken, namely clear information regarding allegations 3 and 4 being provided in advance of a disciplinary hearing; there being a separate investigator and decision maker; where there was no predetermination; and a more detailed appeal hearing, the Respondent would still have dismissed the Claimants.[382]Allegations 1 and 2, separately and together, are sufficient to amount to gross misconduct. The Claimants made no attempt to properly and clearly set out their case on the uplift applied for Dior staff and the payments received by them from VLA Connect Ltd at any internal hearing or in writing.[383]The Tribunal found as a matter of fact that although Mr. Howell was aware that Dior staff were being paid via VLA Connect Ltd, he was not aware that VLA Connect Ltd were being paid an uplift.[384]The Claimants provided no clear or adequate explanations in relation to allegations 1 and 2. Indeed, as set above, the information remains unclear even in their witness statements for this final hearing and in their oral evidence. The Tribunal has kept in mind that this is not a third party arrangement, where an uplift or profit may be agreed, but the company being used was one that was owned by a full time employee of the Respondent, and who worked under the direction of the Claimants.[385]The Tribunal considered that, based on the documentary evidence, had a different process taken place, the outcome would still have been the same and the Respondent would still have dismissed the Claimants in relation to allegations 1 and 2. Even at the final hearing, there was no reasonable explanation for the Claimants facilitating an uplift in pay to VLA Connect Ltd, a company owned by an employee of the Respondent and for all the payments made by VLA Connect Ltd to them. We consider it very unlikely that that the Claimants would have provided any further information in any different, fair internal process given their approach.[386]For completeness, the Tribunal has not made any specific findings in relation to “fraud”, but determined that the Claimants had uplifted the rate of pay for Dior based staff and facilitated VLA Connect Ltd retaining sums from uplifting the rate and that there were partially unexplained payments made to the Claimants in the same period.[387]We I consider there was a 100% chance that the Claimants would still have been dismissed and the dismissal would have been within the range of reasonable responses. Contributory fault[388]The Tribunal may reduce the basic or compensatory awards for culpable conduct as set out in sections 122 and 123 of the Employment Rights Act 1996 as set out above. Although the Tribunal concluded that compensation should be reduced by 100% due to Polkey, the conclusions in relation to contributory fault are set out in brief below.[389]Mr. Sellwood submitted that the Claimants directly contributed to their dismissals in culpable and blameworthy ways.[390]Again, Mr. Sonaike submitted there was no basis for a contributory fault deduction.[391]The Tribunal must firstly identify the conduct giving rise to possible contributory fault, secondly decide whether the conduct was blameworthy and thirdly, whether the blameworthy conduct caused or contributed to the dismissal to any extent.[392]The Tribunal concluded that the conduct giving rise to the contributory fault was uplifting the rate of pay for Dior based staff and facilitating VLA Connect Ltd retaining sums from uplifting the rate and that there were partially unexplained payments made to the Claimants in the same period. Further, the Claimants did not provide any clear explanation on their position regarding the uplifted rates other than stating Mr. Howell was aware and did not fully explain the payments out to them in the internal disciplinary processes.[393]In all the circumstances, the Tribunal considered that this conduct was blameworthy and conclude it was this conduct that wholly led to the dismissal, and taking all into account, find that the basic and compensatory awards should have been reduced by 100%, if there were any remaining sums after a Polkey deduction. Wrongful Dismissal (First Claimant and Second Claimant)[394]The Claimants were dismissed without any notice.[395]The Tribunal kept in mind that in determining a wrongful dismissal complaint we must consider whether the Claimants fundamentally breached the contract of employment by an act of gross misconduct which entitled the Respondent to dismiss the without notice.[396]In distinction to the complaint of unfair dismissal, where the focus is on the reasonableness of managements decisions, and immaterial to what decision we would have reached we must decide whether the Claimants were guilty of conduct serious enough to entitle the Respondent to terminate their employment without notice.[397]We conclude that, on an objective assessment, and on the balance of probabilities, the Claimants’ actions were sufficiently serious to amount to a fundamental breach entitling the Respondent to dismiss the Claimants without notice.[398]The Claimants actions considered to amount to a fundamental breach which permitted the Respondent to dismiss without notice were uplifting the rate of pay for Dior based staff which was paid to VLA Connect Ltd, and receiving unexplained payments from VLA.[399]It is noted that even at this final hearing only partial, and in some cases inadequate, explanations, were provided for sums of money received by them from VLA Connect Ltd. In many cases explanations were not provided at either the internal hearinga, were not addressed adequality or at all in the Claimants’ witness statements and in relation to some of the payments there were no documents supporting the explanation offered. In relation to some of the payments there was no explanation as to the division of sums between the Claimants and some of the explanations were considered to be unusual ways of doing business, in particular we noted the message from Mr. Zayik in which he referenced the message from Mr. Zayik to the First Claimant in which he said: “Anything that comes into my account to VLA will simply not going to go back to you.”[400]As set out above, we have made no specific findings on actual sums that were distributed from VLA Connect Ltd to the Claimants that related solely to any sums gained from the Dior uplifted pay rate but noted the pay rates were uplifted and lesser amounts were paid to Dior based staff than the Respondent had paid to VLA Connect Ltd for onward payment.[401]We conclude that the Claimants did commit a fundamental breach, often phrased as gross misconduct, entitling the Respondent to dismiss them without notice.[402]The Claimants’ claim of breach of contract in relation to notice pay fails and is dismissed. Direct Race Discrimination - First Claimant[403]The Tribunal considered whether there were any inferences that needed to considered. The Claimants submitted that an adverse inference that should be taken into account was that the dismissal of the Claimants was predetermined.[404]As set out above, it was concluded, based on the findings of facts, that the dismissal was predetermined. However, the Tribunal consider the decision to dismiss was only predetermined following Mr. Zayik informing Mr. Howell that fraud had been committed and the provision of the VLA Connect Ltd bank statements. This information was provided by Mr. Zayik following his falling out with the First Claimant.[405]In general, we found no evidence of any racist behaviour by the Respondent, or any of its officers or staff. Comments related to race or nationality were made by Mr. Zayik. We also noted that, prior to the relationship between the Claimants and Mr. Howell breaking down, Mr. Howell had sought to support the Claimants. Indeed he had personally loaned the First Claimant money.[406]There is no evidence to infer that any change in approach by Mr. Howell, or others, was influenced in any way by the First Claimant’s race.[407]It is noted that the first time the First Claimant raised concerns about his treatment being related to race was in this Tribunal claim, and not in either of the internal meetings.[408]Set out below are the Tribunal’s conclusions in relation to each issue of direct race discrimination against the First Claimant. 11(a) In July or August 2021, during a software presentation on Zoom by a third party, Ms Ally Isom- Leonard repeatedly shutting down the First Claimant whenever he asked a reasonable question of the presenter – for example, cutting him off by saying “that is not important, let’s move on”.[409]As set out in the findings of fact above, on the evidence heard the Tribunal did not find that Ms. Isom-Leonard shut down the First Claimant during a Zoom software in July or August 2021. It was found that Ms. Isom-Leonard made reference to moving the discussions on and discussing offline in order to allow the presenter to continue. The Tribunal noted that the First Claimant had not set out any information on this alleged event in his witness statement.[410]Accordingly, as the Claimant was not found to have been shut down, as a matter of fact, and the allegation fails. 11(b) In July 2021, after a meeting at which the First Claimant’s proposal for a new company system was approved, Ms Isom-Leonard following the First Claimant out of the meeting and telling him in a loud, hostile and discussing it with her first[411]As set out in the findings of fact above, on the evidence heard the Tribunal did not find that in July 2021 Ms. Isom-Leonard followed the First Claimant after a meeting and told the First Claimant in a loud, hostile and discussing it with her first.[412]The Tribunal noted that the First Claimant had not set out any information on this alleged event in his witness statement, but has made general comments alleging that Ms. Isom-Leonard bullied other members of staff.[413]Accordingly, as this was not found to have happened as a matter of fact, the allegation fails.[414]For completeness, it is noted again here that issues 11(c) and 11(d) were withdrawn by the Claimants’ in the Claimants written closing submissions. 11 (e) Between October and November 2021, Mr Howell and Mr Hewitt both instructing and paying Mr Volodymyr Zayik so that he deliberately conducted himself in a way designed to undermine the work and reputation of the Claimants and success of the business, including difficult and erratic behaviour, arguing with the First Claimant, making derogatory comments about the Claimants to clients, talking negatively about the business to clients, and refusing to work under the Claimants’ instruction[415]In cross examination the First Claimant accepted that the factual matters in this allegation cannot have taken place in October 2021 and that the earliest date was from 15 November 2021.[416]This allegation is lengthy and contains several elements.[417]As set out in the findings of fact above, Mr. Howell did pay Mr. Zayik following his resignation from the Respondent.[418]Based on the findings of fact the Tribunal do consider that Mr. Zayik acted in a way that sought to undermine the work and reputation of the First Claimant. The Tribunal considered that Mr. Zayik did make derogatory comments about the First Claimant to the Respondent’s clients.[419]The Tribunal do not consider that Mr. Zayik talked negatively about the Respondent’s business to clients. Indeed, the Tribunal consider that following the fall out between Mr. Zayik and the First Claimant and Mr. Zayik’s resignation, Mr. Zayik had his own agenda to sabotage the First Claimant. Indeed, he approached Mr. Howell and told him the Claimants were committing fraud against the Respondent.[420]The Tribunal conclude, on the findings of fact, that following Mr. Zayik informing Mr. Howell that the Claimants were committing fraud and providing bank statements for VLA Connect Ltd showing payments to the Claimants, that Mr. Howell, Mr. Hewitt and Mr. Zayik all wished to implement a process to ensure the departure of the Claimants. Mr. Howell, and Mr. Hewitt, had little information about the running of the Respondent’s business matters and limited personal relationships with clients, and Mr. Howell used Mr. Zayik’s knowledge and relationships to try and ensure that the Respondent’s clients would not leave following an exit of the Claimants from the business.[421]However, the Tribunal do not consider that Mr. Howell or Mr. Hewitt specifically instructed Mr. Zayik to conduct himself in that manner, but rather, Mr. Zayik led on contacting and engaging with clients in view of the general agreed plan to ensure the Claimants left the Respondent.[422]The Tribunal do not consider that Mr. Howell or Mr. Hewitt instructed Mr. Zayik to argue with the First Claimant or refuse to follow the First Claimant’s instructions. Indeed, there had been a significant and serious fall out between Mr. Zayik and the First Claimant before Mr. Zayik contacted Mr. Howell.[423]Further, the Tribunal has kept in mind that at the time of this allegation Mr. Hewitt was not an employee of the Respondent.[424]The Tribunal considered whether the Claimant had discharged the burden on him to show evidence from which the Tribunal could reasonably conclude that factual matters upheld in allegation 11(e) were ‘because of” race.[425]The Tribunal concluded that there was no evidence sufficient to race was the reason why Mr. Howell, and Mr. Hewitt paid and engaged with Mr. Zayik (noting its conclusion there were no specific instructions).[426]There is no prima facie case of race discrimination.[427]The Tribunal considered the reason why Mr. Howell, and Mr. Hewitt paid and engaged with Mr. Zayik and kept in mind the context of the relationship between the parties at the time and the information that Mr. Howell was then aware of. The Tribunal concluded that the reason why was because Mr. Howell considered the Claimants to be diverting money by uplifting staff rates, to be seeking to leave the Respondent and take Respondent business elsewhere and therefore Mr. Howell wanted assistance from Mr. Zayik in securing client relationships and business in view of a departure of the Claimants, and not because of the First Claimant’s race.[428]There is no evidence, direct or from which it could be inferred, to infer that Mr. Howell, or Mr. Hewitt, had a discriminatory racist attitude Indeed when the Claimants had experienced financial difficulties Mr. Howell had personally loaned the First Claimant money and previously sought to improve relations with the Claimants.[429]The First Claimant has failed to show that any of the Respondents[430]The Tribunal did not consider there to be something more in this[431]If the Tribunal is wrong on this, and the burden of proof shifts to the namely that set out above, that Mr. Howell considered the Claimants to be Howell wanted assistance from Mr. Zayik in securing client relationships and business in view of a departure of the Claimants.[432]The allegation fails. 11(f) Between October 2021 and January 2022, Mr Howell and Mr Hewitt refusing to provide support to the Claimants even when they were aware of the excessive pressure the Claimants were under, including when the Claimants were off ill with COVID (Comparator: Andy Howe, Matt Crowfoot or hypothetical)[433]The Tribunal has kept in mind that at the time of this allegation Mr. Hewitt was not an employee of the Respondent, and was therefore under no obligation to provide support to the Claimants.[434]The Tribunal remain unclear on what support the First Claimant bases in this allegation. There was no evidence that the Claimants said they were under pressure or asked for help. Indeed, the One Legal Eagle Whatsapp messages indicate that the Claimants were considering their strategies for leaving the Respondent. The Tribunal appreciates that following the resignation of Mr. Zayik in November 2021 there may have been an increased workload within the Respondent and that when the Claimants were unwell with Covid in December 2021 that may have been difficult to manage on a short term basis but the Tribunal was not directed to any evidence indicating or inferring that Mr. Howell had refused to provide support to the Claimants, or that he was aware that they were under excessive pressure. The Tribunal has reached no conclusion on whether the Claimants were under excessive pressure in the time frame in this allegation.[435]Accordingly, as this was not found to have happened as a matter of fact, the allegation fails. 11(g) On 5 January 2022, Mr Howell suspending the Claimants and proposing to discipline or dismiss them on unjustified allegations of gross misconduct (Comparator: Andy Howe, Matt Crowfoot or hypothetical)[436]The Tribunal considers that its conclusions in relation to the unfair dismissal and wrongful dismissal complaints are relevant to this issue.[437]As a matter of fact, the Claimants were suspended on 5 January 2022 and the suspension letter set out the allegations against them and warned that dismissal was a possibility.[438]The Tribunal considered whether the First Claimant had discharged reasonably conclude that factual matters upheld in allegation 11(g) were ‘because of” race.[439]The Tribunal concluded that there was no evidence sufficient to race was the reason why Mr. Howell suspended the Claimant and warned the Claimants that if the allegations were found they would constitute gross misconduct resulting in dismissal.[440]There is no prima facie case of race discrimination.[441]The Tribunal considered the reason why Mr. Howell suspended the Claimants and set out the information in the letter dated 5 January 2022, was because he wished to ensure the Claimants departure from the Respondent because he believed they had been uplifting Dior pay rates, receiving sums from the uplifted rate via VLA Connect Ltd and that the Claimants were seeking to leave the Respondent and divert business and not because of the First Claimant’s race.[442]As noted in the above conclusions, there is no evidence, direct or from which it could be inferred, to infer that Mr. Howell had a discriminatory racist attitude.[443]The First Claimant has failed to show that any of the Respondents[444]The Tribunal did not consider there to be something more in this[445]If the Tribunal is wrong on this, and the burden of proof shifts to the namely that set out above: that Mr. Howell considered the Claimants to be[446]The allegation fails. 11(h) On 5 January 2022, Mr Howell and Mr Hewitt notifying the Respondent’s staff and clients that the Claimants had been suspended for fraud and embezzlement and directing Chet Fahri to introduce himself as the Managing Director in place of the First Claimant (Comparator: Andy Howe, Matt Crowfoot or hypothetical)[447]The Tribunal reminded itself that it must decide upon the specific allegation as framed by the Claimant.[448]As set out in the findings of fact above, Mr. Howell did send a letter to the Respondent’s security officers on 5 January 2022. However, that letter did not say that the Claimants had been suspended for fraud and embezzlement and did not direct them that Chet Fahri was the Managing Director in place of the First Claimant, but rather it said the Claimants were temporarily out of the business and that Chet Fahri would look after the Respondent’s business in their absence.[449]It is noted that there is a business card for Chet Fahri which states Managing Director. There is no evidence to suggest that the Respondent directed Mr. Fahri to produce this business card at this point in order to hold himself out to be the Managing Director. The Tribunal do not consider that the business card changes the position in relation to this allegation regarding staff.[450]Accordingly, in relation to the part of the allegation relating to staff as this was not found to have happened as a matter of fact, the allegation[451]In relation to notifying clients, it is found as a matter of fact that Chet Fahri and others, visited Respondent clients on 5 January 2022. The Tribunal considered it likely that he gave out his business card. The Tribunal were not directed to any evidence that Mr. Howell or Mr. Hewitt visited clients or notified clients, on 5 January 2022, and notified clients that the Claimants had been suspended for fraud and embezzlement.[452]Accordingly, in relation to the part of the allegation relating to staff as this was not found to have happened as a matter of fact, the allegation[453]In relation to the part of this allegation that Mr. Howell and Mr. Hewitt directed Chet Fahri to introduce himself as the Managing Director in place of the First Claimant, the evidence of Mr. Howell is that Chet Fahri was assisting on interim basis. We consider it likely that the Respondent knew that the Claimants would not be returning, and arranged for business cards to be made, but there is no evidence to support a conclusion that Mr. Howell or Mr. Hewitt directed Chet Fahri to introduce himself as a permanent Managing Director. Further, in Mr. Howell’s witness statement he states: “Chet was not told to introduce himself as the managing director replacing Antonio as alleged.” This was not challenged.[454]Accordingly, in relation to the allegation relating to directing Chet Fahri as this was not found to have happened as a matter of fact, the allegation fails.[455]It is again important to keep in mind that Mr. Hewitt was not an employee of the Respondent at the time of the allegation. Further, as set out in the findings of fact, while it is clear that Mr. Zayik was making comments this allegation involves Mr. Howell and Mr. Hewitt. 11(i) On 10 January 2022, Mr Howell hacking or accessing the First Claimant’s personal LinkedIn account to view the Claimant’s activity and messages[456]As set out in the findings of fact above, on the evidence heard the Tribunal did not find that Mr. Howell hacked or accessed the First Claimant’s LinkedIn account on 10 January 2022. It was found that Ms. Isom-Leonard accessed the account. Ms. Isom-Leonard accessed the account as the Respondent was concerned about the Claimants contact with clients, and the Tribunal notes this took place after the Claimants had been suspended, following Mr. Howell being told the Claimants were committing fraud and after Mr. Zayik had sent Mr. Howell copies of the One Legal Eagle Whatsapp messages.[457]Accordingly, considering the allegation as pursued by the First Claimant, was not found to have happened as a matter of fact, the allegation fails. 11(j) On 12 January 2022, Mr Howell and Paul Bradley conducting the disciplinary hearing in an unfair and unreasonable manner, declining to properly explain the allegations or present any documentation or witness statements in support, or provide access to financial information such that the Claimants could properly respond, as well as threatening to involve the police (Comparator: Andy Howe, Matt Crowfoot or hypothetical)[458]The Tribunal considers that its conclusions in relation to the unfair dismissal complaints are relevant to this issue. It has been concluded that the Claimants were procedurally unfairly dismissed.[459]This allegation relates to specific conduct at the disciplinary hearing.[460]There are no notes of the hearing itself, but there is information about what was discussed in other contemporaneous documents.[461]In relation to the first and second allegation, the Tribunal considers that there was a clear explanation of the allegations. The Tribunal also consider that there was adequate evidence provided to enable the Claimants to respond to the allegations and that access to the Respondent’s financial systems was not required because the Claimants could explain their case that Mr. Howell knew of the Dior arrangement and uplift and also give the information about payments that they gave at this final hearing.[462]However, the Tribunal concludes that inadequate information and discussion took place in relation to the third and fourth allegations, and therefore the Claimants could not properly respond to those allegations.[463]As set out in the findings of fact, the Tribunal found that Paul Bradley did threaten police involvement.[464]The Tribunal considered whether the First Claimant had discharged reasonably conclude that factual matters upheld in allegation 11(j) were ‘because of” race.[465]The Tribunal concluded that there was no evidence sufficient to race was the reason why Mr. Howell and Mr. Bradley conducted the disciplinary hearing as they did.[466]There is no prima facie case of race discrimination.[467]The Tribunal considered the reason why the disciplinary hearing was conducted as it was because Mr. Howell had already formed a view that he wished to ensure the Claimants’ departure from the Respondent because he believed they had been uplifting Dior pay rates, receiving sums from the uplifted rate via VLA Connect Ltd and that the Claimants were seeking to leave the Respondent and divert business. Mr. Bradley did not ensure that the meeting ran in a sufficiently organized way. The Tribunal did not consider there to be any links at all to the First Claimant’s race.[468]It is noted that Paul Bradley was not an employee of the Respondent. The Tribunal consider that reference to police involvement was made because the Respondent considered fraud had taken place.[469]As noted in the above conclusions, there is no evidence, direct or which could be inferred, to infer that Mr. Howell, or Paul Bradley, had a discriminatory racist attitude.[470]The First Claimant has failed to show that any of the Respondents[471]The Tribunal did not consider there to be something more in this[472]If the Tribunal is wrong on this, and the burden of proof shifts to the namely that set out above: that Mr. Howell considered the Claimants to be[473]The allegation fails. 11(k) On 24 January 2022, Mr Howell dismissing the Claimants[474]The Tribunal considers that its conclusions in relation to the unfair dismissal complaints are relevant to this issue. It has been concluded that the Claimants were procedurally unfairly dismissed.[475]The Tribunal considered whether the First Claimant had discharged reasonably conclude that the Claimants were dismissed ‘because of” the First Claimant’s race.[476]The Tribunal concluded that there was no evidence sufficient to race was the reason why the Claimants were dismissed.[477]There is no prima facie case of race discrimination.[478]The Tribunal considered the reason why the Claimants were dismissed was because Mr. Howell had already formed a view that he wished to ensure the Claimants departure from the Respondent because he believed they had been uplifting Dior pay rates, receiving sums from the uplifted rate via VLA Connect Ltd and that the Claimants were seeking to leave the Respondent and divert business. The Tribunal did not consider there to be any links at all to the First Claimant’s race.[479]As noted in the above conclusions, there is no evidence, direct or which could be inferred, to infer that Mr. Howell as the dismissing officer, had a discriminatory racist attitude.[480]The First Claimant has failed to show that any of the Respondents[481]The Tribunal did not consider there to be something more in this[482]If the Tribunal is wrong on this, and the burden of proof shifts to the namely that set out above, that Mr. Howell considered the Claimants to be[483]The allegation fails. 11(l) On 25 February 2022, Mike McDonagh conducting an appeal which lacked impartiality and then dismissing the Claimant’s appeals[484]The findings of fact set out what happened in relation to the appeal. It is fact that Dr. McDonagh dismissed the Claimants’ appeal. The Tribunal conclude, on balance, taking the evidence into account, that Dr. McDonagh did not conduct a thorough appeal and that he essentially rubber stamped the decision because he considered wrongdoing had taken place and together this evidences partiality. The Tribunal has reached this conclusion taking into account various matters including his lack of awareness of appeal related documents, his discussions with Mr. Howell and Mr. Bradley not being noted or fed back to the Claimants and saying further investigation would be undertaken when it was not and the outcome was issued the next working day.[485]However, as required, the Tribunal considered whether the First Claimant had discharged the burden on him to show evidence from which the Tribunal could reasonably conclude that Dr. McDonagh conducted an appeal which lacked impartiality and dismissed the Claimants’ appeals ‘because of” the First Claimant’s race.[486]The Tribunal concluded that there was no evidence sufficient to race was the reason why Dr. McDonagh acted as he did.[487]There is no prima facie case of race discrimination.[488]The Tribunal considered the reason why was because Dr. McDonagh, having conferred with Mr. Howell and Mr. Bradley, had already formed a view that the Claimants had been uplifting Dior pay rates, receiving sums from the uplifted rate via VLA Connect Ltd and that the Claimants were seeking to leave the Respondent and divert business and he wished to uphold Mr. Howell’s decision. The Tribunal did not consider there to be any links at all to the First Claimant’s race.[489]As noted in the above conclusions, there is no evidence, direct or which could be inferred, to infer that Dr. McDonagh, the appeal officer, had a discriminatory racist attitude.[490]The First Claimant has failed to show that any of the Respondents[491]The Tribunal did not consider there to be something more in this[492]If the Tribunal is wrong on this, and the burden of proof shifts to the namely that set out above: that Dr. McDonagh, having conferred with Mr. Howell, had already formed a view that the Claimants had been uplifting Dior pay rates, receiving sums from the uplifted rate via VLA Connect Ltd and that the Claimants were seeking to leave the Respondent and divert business and he therefore sought to uphold Mr. Howell’s decision[493]The allegation fails. Associative Direct Discrimination - Second Claimant[494]It is important to note that at the start of the final hearing the Claimants’ representative confirmed that the Second Claimant, Ms. Suurkivi was withdrawing the allegation of direct race discrimination based on her own race, as had been set out previously at issue 16 of the draft list of issues and was now only pursuing an associative discrimination claim relying on the First Claimant’s race.[495]As set out above, the Tribunal has not upheld any of the First Claimant’s allegations of direct race discrimination. The Second Claimant relies on allegations11 (c) to (h) and (j) to (l) and argues that she was subjected to less favourable treatment because of her association with the First Claimant.[496]For brevity, the Tribunal relies on the same conclusions as set out in relation to the First Claimant, and will not repeat here, but should be noted that there is no evidence at all that the Second Claimant was treated as she was because of the First Claimant’s race. The conclusions above set out the reason why the Claimants were treated as they were.[497]The Second Claimant’s complaint of associative discrimination complaint fails. Harassment – First Claimant[498]The First Claimant alleges that: In a meeting between Colin Howell, Troy Hewitt and Volodymyr Zayick during January 2022, Mr Howell and Mr Hewitt openly mocked the First Claimant’s colour, stating that “Antonio is black, no one will believe him even if he tries to justify himself” and “if Antonio thinks he is a gangster, I know some gangsters myself.”[499]There is no evidence to support a conclusion that Mr. Howell or Mr. Hewitt openly mocked the First Claimant’s colour. Any racist or discriminatory comments made about the First Claimant were made by Mr. Zayik, as set out in the findings of fact.[500]The First Claimant confirmed that it is alleged that Mr. Hewitt allegedly made the comments.[501]As set out it in the findings of fact, the Tribunal did not find that Mr. Hewitt said “Antonio is black, no one will believe him even if he tries to justify himself”.[502]Accordingly, this part of the allegation was not found to have happened as a matter of fact, and the allegation fails.[503]The Tribunal found that Mr. Hewitt did make the comment “if Antonio thinks he is a gangster, I know some gangsters myself.” The context in which this was said is set out in the finding of fact. There is no evidence to support a conclusion that this comment was linked to race.[504]The Claimant was not present at the meeting when this was said, indeed, the Claimant has not commented on this allegation at all in his witness statement. There is no evidence from the First Claimant about such comment being unwanted.[505]The Tribunal notes that in oral evidence Mr. Hewitt made comments about the First Claimant having been to prison. The Tribunal do not conclude that this indicates that Mr. Hewitt had a stereotypical or racist attitude. The Tribunal consider that both parties, and Mr. Zayik, have made various comments seeking to cause reputational damage following the breakdown in relationships, but that this does not have any bearing on this allegation.[506]The Tribunal considered whether the comment was related to race and conclude that it was in no way related to race. Instead, the Tribunal conclude that Mr. Hewitt said it for the reasons noted above, namely that he was seeking to respond in jest to Mr. Zayik telling him that the First Claimant was going to have Mr. Hewitt sorted out. Again, the context of the general situation and fall out between the parties, Mr. Zayik and Mr. Hewitt is relevant.[507]The Tribunal went on to consider, should we be wrong on that, whether Mr. Hewitt intended the conduct to violate the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offence environment for the Claimant. We conclude that there was no such purpose or intention. The First Claimant was not present, and only became aware when he later made up his friendship with Mr. Zayik and Mr. Zayik told him. The Tribunal conclude the comment was said for the reasons given by Mr. Hewitt, an attempt to be a response to the comment made by Mr. Zayik.[508]Noting in particular that the First Claimant had not given any evidence on any effect, the Tribunal was not able to conclude that the conduct reasonably had the effect of violate the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offence environment for the Claimant.[509]The comment “if Antonio thinks he is a gangster, I know some gangsters myself.” was not race related harassment and the complaint[510]The First Claimant’s complaint of harassment fails. Unlawful Deduction from Wages[511]On the last day of the final hearing the Claimants withdrew the unlawful deduction from wages complaints set out at paragraphs 22i, ii and iii. Each Claimant has one remaining unlawful deduction from wages complaint.[512]In written submissions Mr. Sonaike said: “The Claimants pleaded that they had not been paid in full for their January wages and yet the Respondent failed to provide any documentation to prove or support their defence that in fact wages had been paid”. During the course of the final hearing no such representations were made and no application for disclosure was made.[513]The First Claimant says he is owed 10% gross commission for introducing a client to Assist Global Solutions (22iv).[514]The Second Claimant says she is owed £902.80 for wages relating to December 2021 (22v).[515]Dealing firstly with the First Claimant’s complaint, the Tribunal considered that even by the end of the final hearing the complaint remains wholly unspecified. The First Claimant has not specified the sum he says he is owed in monetary form, has not identified the date on which he says any payment was due and has not identified the client for which he says commission is owed, save for in cross examination when he referenced a Nigerian client that he could not remember the name of.[516]On this basis, the Tribunal is unable to make any factual findings on whether any such sum was properly payable, how much and when. The First Claimant has failed to meet the burden of proof.[517]The First Claimant’s complaint of unlawful deduction from wages[518]In relation to the Second Claimant’s allegation, the Tribunal notes that the Second Claimant has not provided any information on this allegation in her witness statement and the Tribunal was not directed to any evidence in the Bundle in support of this allegation. Mr. Howell, within his witness statement, says the Claimants had been paid their full salary for December.[519]Although the amount sought is clearly stated, on the evidence provided the Tribunal is unable to conclude that the Second Claimant was owed any sums for December 2021. The Second Claimant has failed to meet the burden of proof.[520]The Second Claimant’s complaint of unlawful deduction from wages Failure to Provide Written Particulars of Employment[521]The Claimants both alleged that the Respondent failed to provide written particulars of employment.[522]It is important to note that this complaint is not a freestanding claim, but where a claimant is successful in another complaint, the Tribunal must award a sum of two weeks’ pay.[523]In this case, the Claimants were successful in their unfair dismissal complaint, therefore the Tribunal was required to consider this complaint.[524]The findings of fact above set out the background of how the Claimants came to be employed by the Respondent.[525]The First Claimant’s evidence was that he had a contract of employment whilst employed by Sursec. It was not clear what information was set out in any such contract.[526]The Second Claimant said that she did not have a contract of employment whilst employed by Sursec.[527]The evidence between the two Claimants is contradictory.[528]The Tribunal was not directed to any evidence that the Second Claimant had requested a statement of particulars.[529]The Claimants were responsible for the running of Sursec and, subsequently, the Respondent, and the Tribunal concludes that it was within their power, at either the point they joined the Respondent or at any time thereafter to issue themselves with contracts of employment/written statement of particulars.[530]Section 1 of the Employment Rights Act 1996 requires employers to provide key terms of employment to be set out in writing.[531]Prior to April 2020 written particulars had to be provided within two months of employment starting. The Claimants transferred to the Respondent in August 2019.[532]The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 contains transitional provisions for persons employed prior to 6 April 2020. In essence existing employees could request a new statement of written particulars.[533]Employers are required to notify employees of changes. However, where the identity of the employer changes in circumstances where continuity of employment is not broken, asuch as a TUPE transfer, provided no changes occur in any of the other matters which must be specified in a section 1 statement, the new employer can notify the employee of the change in writing not later than one month after the change. There is no need for a new section 1 statement to be issued.[534]In the case of employees who transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006, their employment transfers to the new employer automatically and the “contract shall have effect after the transfer as if originally made between the person so employed and the transferee.” The new employer is not required to give a new contract of employment, or written statement, because the original transfers with the employee, but employees must be informed there has been a change in the employer.[535]The Claimants should have been provided with a written particulars of employment by Sursec.[536]In this case, on balance, noting the contradiction between the two Claimants, the Tribunal consider that the First Claimants evidence is more likely and that they had written terms of employment with Sursec. The fact that the First Claimant appears to recall disclosing such documents at the time of the transfer was relevant to this conclusion.[537]Accordingly, on this basis, this complaint must fail.[538]However, the Tribunal went on to consider, if there was no contract of employment/written particulars, whether there are exceptional circumstances in this case which would render making an award unjust or inequitable.[539]Section 38(5) states: “The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.”[540]The Tribunal conclude that, in the circumstances of this particular case, there are exceptional circumstances that would render it unjust to make an award. Firstly, there is an evidential discrepancy. The First Claimant says he had a contract and the Second Claimant says she did not. Secondly, the Claimants ran Sursec and should have and could have issued themselves with written particulars of employment. Thirdly the Claimants effectively operated the Respondent as the two most senior employees and in many ways acted as if it was their own business. The Claimants had the power to issue themselves with written particulars, albeit possibly with discussion with Mr. Howell. Therefore the Tribunal concluded that for this reason, it was not just to make an award. Time limits[541]The Tribunal has only upheld the complaint of unfair dismissal. These complaints were submitted on time.[542]As the Claimants were not successful in relation to any other complaints the Tribunal has not gone on to consider if such complaints were out of time as it was not necessary to do so. Approved by